This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1961

 

Alan Huhta and Pam Huhta,

Husband and Wife,

Appellants,

 

vs.

 

Thermo King Corp.,

Respondent.

 

Filed June 29, 2004

Affirmed

Forsberg, Judge*

 

Carlton County District Court

File No. C2-03-674

 

Andrew P. Engebretson, Engebretson & Associates, 300 Beal Building, Five North Third Avenue West, Duluth, MN  55802 (for appellants)

 

John D. Sear, Bowman and Brooke, LLP, 2600 Fifth Street Tower, 150 South Fifth Street, Minneapolis, MN  55402 (for respondent)

 

Considered and decided by Klaphake, Presiding Judge; Stoneburner, Judge; and Forsberg, Judge.

U N P U B L I S H E D  O P I N I O N

FORSBERG, Judge

Appellants Alan and Pam Huhta sued respondent Thermo King contending Alan Huhta (Huhta) suffered injuries while testing a refrigeration unit manufactured by Thermo King.  As Huhta tested the refrigeration unit for a leak, one of the unit’s component parts exploded.  Huhta’s employer owned the refrigeration unit.  After the accident, the component part disappeared, and Huhta and other workers disassembled the refrigeration unit.  Thermo King moved for summary judgment on the ground that Huhta had engaged in spoliation of evidence by failing to preserve the component part, the refrigeration unit, and its maintenance records and therefore prevented Thermo King from defending itself.  The district court granted summary judgment on that basis.  Appellants argue that summary judgment should not have been granted because: (1) Huhta had no property right in the subject of spoliation; and (2) a jury instruction would have cured any prejudice against Thermo King due to the absence of the product in question.  We affirm.

FACTS

 

            In 1984, Huhta began working as a truck mechanic for Upper Lakes Foods (ULF) in Cloquet.  In 1986 or 1987, he spent a year training to be a refrigeration mechanic.  After training, Huhta returned to work at ULF as a truck and refrigeration mechanic, and continues to work in that same capacity today. 

ULF is a food wholesaler that delivers frozen and fresh food to various customers using trucks equipped with refrigeration units.  In 1996, two years before the accident at issue in this case, ULF acquired a truck with a refrigeration unit from Ryder Lease.  Thermo King manufactured the refrigeration unit in 1986. 

On August 10, 1998, Huhta received notice from one of ULF’s drivers that the refrigeration unit inside the truck was not cooling properly.  During his deposition, Huhta testified that he determined there was a leak in the unit, and tried to find the source of the leak.  In an attempt to find the leak, Huhta attached gauge manifolds to the refrigeration unit to pressurize the cooling system with nitrogen.  Huhta testified that as he pressurized the system, he heard “a crackling or a popping sound” coming from a hose-like component part called a suction vibrasorber.[1]  He stated that at this time he saw strands of the component part tearing.  Huhta testified that the component part then “popped,” causing a loud noise that bounced off the back of the truck and allegedly damaged his hearing.  Huhta stated that the “stainless steel braiding from the [component part] was embedded in [his] eyes with compressor oil.”  Huhta testified that he jumped down from the truck and had material sprayed into his eyes.  He stated that his supervisor brought him to the hospital.

            Approximately a week after the accident, Huhta removed what was left of the old component part, installed a new component part, and cleaned the joints on the refrigeration unit.  Huhta testified that he placed the old component part in his parts room because he wanted to take a closer look at it to determine what caused the accident.  He also stated that he did not label the old component part, put his name on it, or tell anyone he wanted to keep it.  Huhta testified that, at that point, the old component part “mysteriously vanished” from his parts room.  Huhta stated that he has no knowledge of how the component part disappeared or its present whereabouts. 

In 2000, two years after the accident, Huhta and other ULF night shift workers disassembled the refrigeration unit and scrapped it for parts because it was rusting and had not been working properly.  At the same time, ULF discarded most of its records concerning the refrigeration unit’s maintenance, servicing, and repair.  Records concerning the refrigeration unit are no longer available for:  (1) the ten-year period before ULF acquired the truck and refrigeration unit; (2) the date of the accident; or (3) the two-year period between the accident and when the unit was scrapped.  The only remaining records concerning the unit exist for a two-year period starting in 1996 until just before the date of the accident in 1998.  These records are not in the district court file. 

In October 2001, three years after the accident, appellants first gave Thermo King notice of the accident when their attorney contacted Thermo King directly.  In June 2002, appellants served their complaint on Thermo King alleging that Huhta was injured on August 10, 1998, as a result of a manufacturing defect in the component part of the Thermo King refrigeration unit.  Appellants alleged that Huhta suffered permanent and significant hearing loss as well as mental distress from the accident.  Thermo King answered appellants’ complaint denying the allegations and affirmatively alleging that appellants’ claims were barred “by the spoliation of evidence by person and entities other than Thermo King.” 

On May 16, 2003, Thermo King moved for spoliation sanctions and summary judgment.  Thermo King asserted that Huhta failed to preserve the refrigeration unit, the component part, and maintenance records from the date of the incident.  As a spoliation sanction, Thermo King sought “exclusion of testimony by Alan Huhta opining how and why the [component part] allegedly ruptured.”  In support of its motion, Thermo King submitted the affidavit of their service manager Steve Helgeson, which explained the importance of having the actual components of the refrigeration unit, the refrigeration unit, and records concerning the unit in determining why the failure occurred.  Helgeson’s affidavit stated that the component part could have ruptured for a variety of reasons unrelated to the manufacture of the component part and that, without the component part, refrigeration unit, and records, determination of the cause of the failure is “impossible.” 

            On June 19, 2003, appellants submitted their response to Thermo King’s motion arguing that spoliation as a sanction could not be asserted against them.  In his affidavit attached to the motion, Huhta stated that he “had no right, title, or interest, or right of control over the refrigeration unit involved in the accident that is part of the subject matter of this litigation” and that he did not have “right of control or disposition over the records relating” to the unit.  Huhta submitted a supplemental affidavit, where based on his experience as a refrigeration technician, he opined that to a reasonable degree of certainty the component part’s rupture occurred because of a manufacturing defect.

On September 18, 2003, the district court granted Thermo King’s motion in its entirety.  In its order and memorandum, the court stated:

This Court is not unaware that its attached Order gives rise to a harsh result.  It is unquestioned, however, that this is a defective manufacturing claim and that [Huhta] and/or his employer had exclusive possession and control of the allegedly defective equipment, and were solely responsible for either its safekeeping or destruction.  Were the Court to allow this matter to go forward, [Thermo King] would be left helpless in the fact of [Huhta’s] testimony, totally deprived of any opportunity to inspect, examine, test, or defend itself.

 

Further, it is noted that [Huhta] asserted a Worker’s Compensation claim that both [Huhta] and [Thermo King] knew or should have known that third-party litigation was a very real likelihood.  Under such circumstances, this Court has concluded that, while harsh, its Order represents the only possible result under existing cases and precedents.

 

The district court also denied appellants’ request for leave to file a motion for reconsideration.  The court concluded that without the component part, which Huhta and/or his employer destroyed, Thermo King had no way to defend the action against it.  The court entered summary judgment against appellants on October 23, 2003.  This appeal follows.

D E C I S I O N

 

On appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment is appropriate when the matter before the district court has no genuine issues of material fact and one party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  “[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Id.  Further, “the party resisting summary judgment must do more than rest on mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71  (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.


1.         Spoliation

Appellants first challenge the district court’s sanction for spoliation of evidence arguing that spoliation cannot be asserted against them because Huhta had no legal right, title, or interest in the refrigeration unit or any of its component parts. 

            Spoliation constitutes the destruction of evidence or the failure to preserve property for another’s use in pending or future litigation.  Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc., 456 N.W.2d 434, 436 (Minn. 1990).  Also, “[s]poliation of evidence refers to the destruction of relevant evidence by a party.”  Hoffman v. Ford Motor Co., 587 N.W.2d 66, 71 (Minn. App. 1998) (quotation and citation omitted).  Spoliation encompasses both intentional and negligent destruction of evidence.  Patton v. Newmar Corp., 538 N.W.2d 116, 118-19 (Minn. 1995).  Regardless of intent, disposing of evidence constitutes spoliation when a party knows or should know that the evidence should be preserved for pending or future litigation.  Id. at 118.  Spoliation is a factual finding that will not be set aside unless clearly erroneous.  Hoffman, 587 N.W.2dat 70. 

            Courts can sanction a party for spoliation of evidence when one party gains an evidentiary advantage due to its failure to preserve evidence after that party has been given the opportunity to examine it.  Himes v. Woodings-Verona Tool Works, Inc., 565 N.W.2d 469, 471 (Minn. App. 1997), review denied (Minn. Aug. 26, 1997).  “The propriety of a sanction for the spoliation of evidence is determined by the prejudice resulting to the opposing party.”  Hoffman, 587 N.W.2d at 71.  This court reviews a choice of sanction for an abuse of discretion and will reverse a district court’s choice of sanction “only when it is clear that no reasonable person would agree [with] the district court’s assessment of what sanctions are appropriate.”  Patton, 538 N.W.2d at 119 (quoting Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992)).

A.        Possession and Control

Appellants argue that, as a matter of law, spoliation cannot be asserted against Huhta because as an employee he did not have a “legal right, title or interest in the refrigeration unit and the missing component part.”  Appellants assert that because Huhta’s employer owned the refrigeration unit, his employer had control over the unit and all of its component parts. 

Approximately a week after the accident, Huhta removed what was left of the old component part and placed it in his parts room because he wanted to take a closer look at it to determine what caused the accident.  Huhta stated that he did not label the part, put his name on it, or tell anyone he wanted to keep it.  Two years after the accident, Huhta and other ULF night shift workers disassembled the refrigeration unit, and scrapped it for parts because it was rusting and had not been working properly.  Appellants concede these facts are undisputed, and the undisputed facts show that Huhta had exclusive control and possession over the component part because he placed it in his parts room.  Huhta also had control and possession over the refrigeration unit because he and other ULF workers later disassembled it and scrapped it for parts.  In addition, Huhta is a party to this suit and indicated his awareness of the importance of preserving the component part when he testified that he placed the component part in his parts room so he could later determine the cause of the accident.  See Patton, 538 N.W.2d at 118 (stating that disposing of evidence is spoliation when party knows or should know evidence should be preserved for pending litigation).  Given the undisputed facts in this case, we conclude the district court did not err by concluding that Huhta and/or his employer had exclusive control and possession over the refrigeration unit and the missing component part.

B.        Jury Instruction

Appellants also argue that a jury instruction would have cured any prejudice against Thermo King due to spoliation.  However, spoliation as a sanction is an evidentiary ruling determined by the district court.  See Benson v. Northern Gopher Enters., 455 N.W.2d 444, 445 (Minn. 1990) (stating that evidentiary rulings are committed to the sound discretion of the district court).  When a party inadvertently or negligently destroys critical evidence, the appropriate sanction depends on the amount of prejudice the opposing party suffers by its inability to inspect the evidence.  Patton, 538 N.W.2d at 119.  Prejudice is determined by considering the nature of the item lost in the context of the claims asserted and the potential for correcting the prejudice.  Id. 

A jury instruction regarding the absence of the refrigeration unit and its missing component part would not have cured the prejudice against Thermo King.  The component part disappeared, and the refrigeration unit was destroyed while in Huhta’s exclusive control.  At that same time, ULF discarded most of the relevant records concerning the refrigeration unit’s maintenance, servicing, and repair.  The only remaining records exist from 1996 until just before the date of the accident in 1998, and they are not in the record.  Thermo King was not notified of the component part’s disappearance or the subsequent destruction of the refrigeration unit and its maintenance records until three years after the accident when appellants filed their claim alleging that the component part in the refrigeration unit had been defectively designed.  The destruction of the evidence without prior notice to Thermo King foreclosed its opportunity to conduct an independent investigation of the refrigeration unit, its component part, and any records regarding the refrigeration unit.  The critical pieces of evidence were destroyed giving appellants a huge evidentiary advantage because Huhta, as a party and alleged expert in this case, would be the sole person to testify about the condition of the missing component part.  See Patton, 538 N.W.2d at 119 (considering spoliation as appropriate sanction when “critical item of evidence no longer exists to speak for the plaintiff’s claims or the defendant’s defense).  Thermo King is unable to conduct an independent investigation of the very product that allegedly caused the injury for which it is being sued.  Because any evidentiary basis for an alternative defense theory of causation was destroyed, the district court’s spoliation sanction in excluding Huhta’s testimony relating to how and why the missing component part allegedly ruptured is not an abuse of discretion.  We conclude a jury instruction would not cure the prejudice to Thermo King.

2.         Summary Judgment

            Appellants next argue that summary judgment was inappropriate in this case.  As a result of its sanction for spoliation, the district court granted summary judgment.  In response to a motion for summary judgment, the nonmoving party must present the existence of genuine issues of material fact.  Erickson v. General United Life Ins. Co., 256 N.W.2d 255, 259 (Minn. 1977).  Further, to establish a product-liability claim based on strict liability, “an injured party must show (1) the product was in a defective condition, unreasonably dangerous to the user, (2) the defect existed when the product left the manufacturer’s control, and (3) causation.”  Westbrock v. Marshalltown Mfg. Co., 473 N.W.2d 352, 356 (Minn. App. 1991), review denied (Minn. Sept. 13, 1991).

            In Patton, Hoffman, and Himes, courts excluded evidence of allegedly faulty products to sanction product-liability plaintiffs for spoliation, and then granted summary judgment to defendants because no genuine issues of material fact remained after the exclusion.  See Patton, 538 N.W.2d at 119-20 (plaintiffs unable to make a prima facie case of defective motor home after court excludes expert testimony and photographs as sanction for spoliation of motor home); Hoffman, 587 N.W.2d at 70-71 (plaintiffs unable to present prima facie case of defective automobile after court excludes expert testimony and photographs as sanction for spoliation of fire scene); Himes, 565 N.W.2d at 470-71 (entering summary judgment against plaintiff after court excludes expert testimony as sanction for spoliation of allegedly defective wrench). 

            Appellants argue that even without Huhta’s testimony they have the operation manual and the testimony of Huhta’s co-workers to establish a prima facie case and genuine issues of material fact.  As in Patton, Hoffman, and Himes, the evidence taken in the light most favorable to Huhta does not contain any genuine issues of material fact about the defective nature of the product.  Without Huhta’s testimony about the condition of the missing component part, there is little evidence to support appellants’ claim.  Attached to Huhta’s supplemental affidavit is a copy of the maintenance manual for the refrigeration unit, which stated that the refrigeration unit’s pressure release valve was designed to activate when pressure between 450 and 550 pounds per square inch is applied.  Huhta asserted that he applied only 200 pounds per square inch when he conducted his testing.  Appellants argue that these facts lead to the inference that the component part was defectively designed because it “had to be built to withstand at least 550 pounds per square inch of pressure and that the fact it gave way at a little less than 200 pounds per square inch indicates that it has been defectively manufactured.”  These facts do not assert a genuine dispute but merely speculate as to the component part’s and/or the refrigeration unit’s allegedly defective nature.  Huhta’s affidavits contain no factual support other than Huhta’s conclusions that the missing component part was defectively designed, the defect caused the rupture, and Huhta’s alleged injuries.  See MCC Invs. v. Crystal Properties, 451 N.W.2d 243, 247 (Minn. App. 1990) (expert opinion based on speculation lacks evidentiary value), review denied (Minn. Mar. 27, 1990).  Appellants never offered the testimony of Huhta’s co-workers to the district court, and Huhta testified that he was the only one to witness the accident.  Under these facts, even if appellants could demonstrate the component part was defective at the time of the accident, Huhta’s failure to preserve the evidence eliminates his ability to demonstrate that the defect caused the accident.  We conclude summary judgment was appropriate in this case.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

[1] The component part (vibrasorber) is a flexible hose made of stainless steel designed to minimize the transmission of vibrations of a refrigeration unit’s engine.