Category Archives: Evidence

Compliance Doesn’t Pay: Compliance Evidence Inadmissible in Strict Liability Actions

This entry was posted by Kyle Rice on January 2, 2024.

In Sullivan v. Werner Co., No. 18 EAP 2022, 2023 Pa. LEXIS 1715 (Dec. 22, 2023), the Supreme Court of Pennsylvania (Supreme Court) clarified that in light of its decision in Tincher v. Omega Flex, Inc., 628 Pa. 296 (2014), evidence that a product complied with industry standards is inadmissible in an action involving strict product liability.

In Tincher, the Supreme Court overruled prior case law and reaffirmed that Pennsylvania is a Second Restatement Jurisdiction. As stated in Sullivan, discussing Tincher, under the Restatement (Second) of Torts § 402A, a “seller of a product has a duty to provide a product that is free from ‘a defective condition unreasonably dangerous to the consumer or [the consumer’s] property.’ To prove breach of this duty, a ‘plaintiff must prove that a seller (manufacturer or distributor) placed on the market a product in a “defective condition.””

Continue reading →

This entry was posted in Evidence, Pennsylvania, Products Liability and tagged Evidence, Pennsylvania, Product Liability, Products Liability – Risk-Utility.

Don’t Spoil Me: Oklahoma District Court Rules Against Spoliation Sanctions

This entry was posted by Kyle Rice on November 20, 2023.

In Okla. Farm Bureau Mut. Ins. Co. v. Omega Flex, Inc., No. CIV-22-18-D, 2023 U.S. Dist. LEXIS 197755, the United States District Court for the Western District of Oklahoma (the District Court) determined spoliation sanctions were not warranted after a home was demolished for repair following a joint scene examination.

The insurer, Oklahoma Farm Bureau Mutual Insurance Company (Insurer) provided a policy of insurance to Michael and Sondra Diel (the Diels). On July 11, 2020, the Diels’ home was struck by lightning and their attic caught fire. Following the loss, Insurer retained both counsel and fire origin and cause experts to inspect the Diels’ property. Insurer’s counsel informed in-house counsel for Omega Flex, Inc. (Omega Flex) via a letter dated July 14, 2020, that a preliminary investigation indicated the fire may have been caused by an Omega Flex product—specifically, TracPipe Corrugated Stainless Steel Tubing (CSST). Insurer’s counsel invited Omega Flex to inspect the property, noting: “It is anticipated that the loss will exceed $300,000” and stating that any inspection “must be completed during the next two weeks. At that time, the homeowner will proceed with demolition to rebuild.” (Emphasis added).

Continue reading →

This entry was posted in Evidence, Oklahoma, Spoliation and tagged Oklahoma, Sanctions, Spoliation, Spoliation – Fire Scene.

Indiana Appellate Court Allows Third-Party Spoliation Claim to Proceed

This entry was posted by Ryan Bennett on June 26, 2023.

In Safeco Insurance Company of Indiana as Subrogee of Ramona Smith v. Blue Sky Innovation Group, Inc., et al, No. 22A-CT-1924, 2023 Ind. App. LEXIS 157, the Court of Appeals of Indiana (Appellate Court) reversed a trial court ruling that granted the motion to dismiss filed by Michaelis Corporation (Michaelis), a restoration company. The Appellate Court ruled that the trial court erred in dismissing the plaintiff’s spoliation and negligence claims against Michaelis, who discarded evidence relating to the cause of the fire at issue.

Continue reading →

This entry was posted in Evidence, Indiana, Spoliation and tagged Indiana, Spoliation, Third Party.

Industry Standard and Sole Negligence Defenses Can’t Fix a Defect

This entry was posted by Lian Skaf on May 11, 2021.

Strict products liability cases have been the subject of much fluctuation in the Pennsylvania courts over the last few years. Utilizing hope created by the courts in recent strict liability cases, defendants have tried to revive defenses based on meeting industry standards and the plaintiff’s contributory negligence. Recently, the Superior Court of Pennsylvania tempered that hope with limitations of how far strict liability defenses can extend. Continue reading →

This entry was posted in Comparative-Contributory Negligence, Evidence, Negligence, Pennsylvania, Products Liability and tagged Negligence, Pennsylvania, Products Liability.

What the Jury Doesn’t Know about Insurance Won’t Hurt Them

This entry was posted by Lian Skaf on March 1, 2021.

The issue of whether a jury will be less inclined to award an insurance company plaintiff – versus an individual person or entity – a favorable verdict is a real one for subrogation professionals facing a potential trial. In states where the laws allow carriers to choose between filing in their own name or in the name of the insured, there are numerous factors attorneys must weigh before finalizing the caption. However, if a jury is allowed to know the extent of the carrier’s involvement, the notion of filing in the name of the insured becomes less appealing. Continue reading →

This entry was posted in Evidence, Massachusetts, Parties, Subrogation and tagged Evidence – Probative Value, Massachusetts, Parties, Parties – Real Party in Interest, Subrogation.

Arkansas Federal Court Denies Defendants’ Attempt to Exclude Evidence

This entry was posted by Michael J. Ciamaichelo on November 12, 2020.

In Am. Nat’l Prop. & Cas. Co. v. Broan-Nutone, No. 5:18-CV-5250, 2020 U.S. Dist. LEXIS 203267 (W.D. Ark.), a subrogating carrier filed a product liability lawsuit alleging that a defective bathroom fan caught fire and caused property damage. Prior to trial, the defendants/manufacturers filed motions to: (i) prevent the plaintiff’s experts from testifying for allegedly spoliating evidence; and (ii) prevent the admission of the fire marshal’s report as hearsay and/or as prejudicial, confusing and/or misleading. The court denied the defendants motions, thereby allowing all of the evidence to be presented by the subrogating carrier at trial. Continue reading →

This entry was posted in Arkansas, Evidence, Spoliation and tagged Arkansas, Evidence - Hearsay, Evidence - Public, Spoliation – Fire Scene.

Eastern District of Pennsylvania Clarifies Standard for Imposing Spoliation Sanctions

This entry was posted by wpengine on September 30, 2020.

Courts are faced with the difficult task of drawing a line to determine when the failure to preserve evidence becomes culpable enough to permit a judicial remedy. In State Farm Fire & Cas. Co. v. Cohen, No. 19-1947, 2020 U.S. Dist. LEXIS 163681, the United States District Court for the Eastern District of Pennsylvania (District Court) made clear that a party is not entitled to a spoliation sanction without proof that the alleged spoliation was beyond accident or mere negligence. The District Court emphasized that when evidence goes missing or is destroyed, the party seeking a spoliation sanction must show that the alleged spoliation was intentional and that the alleged spoliator acted in “bad faith” before adverse inferences will be provided. Continue reading →

This entry was posted in Evidence, Pennsylvania, Spoliation and tagged Burden of Proof, Pennsylvania, Spoliation.

Florida Adopts Daubert Standard for Expert Testimony

This entry was posted by Michael L. DeBona on July 15, 2019.

Seven months ago, the Florida Supreme Court declined to adopt Daubert as the standard for admitting expert testimony in Florida state courts. In DeLisle v. Crane Co., 258 So. 3d 1219 (2018), the court reaffirmed that “Frye, not Daubert, is the appropriate test in Florida.” On May 23, 2019, however, Florida’s high court did an about-face. In In Re: Amendment to the Florida Evidence Code, No. SC19-107, the Florida Supreme Court overruled its decision in DeLisle and declared that Florida will now apply the Daubert standard to determine whether scientific evidence is admissible. Continue reading →

This entry was posted in Evidence, Experts, Experts – Daubert, Florida and tagged Civil Procedure, Experts, Florida.

Texas Walks the Line on When the Duty to Preserve Evidence at a Fire Scene Arises

This entry was posted by Lian Skaf on July 10, 2019.

The extent to which a loss scene can be altered before adversaries can legitimately cry spoliation has long been a mysterious battleground in the world of subrogation. In the case of In re Xterra Constr., LLC, No. 10-16-00420-CV, 2019 Tex. App. LEXIS 3927 (Tex. App. – Waco, May 15, 2019), the Court of Appeals of Texas, Tenth District, addressed the question of when a party has a duty to preserve evidence. The court found that the trial court abused its discretion in imposing sanctions on the defendants for the spoliation of evidence as the evidence at issue was already gone by the time the defendants knew or reasonably should have known there was a substantial chance a claim would be filed against them. Continue reading →

This entry was posted in Evidence, Spoliation, Subrogation, Texas and tagged Spoliation, Subrogation, Texas.

Fire Loss Subrogation Counsel and Origin and Cause Consultants Must Work Together in Responding to Opinion Admissibility Challenges

This entry was posted by Christopher Konzelmann on April 5, 2019.

Philadelphia Contributorship Ins. Co. a/s/o David Munz v. Ryan, Inc., 2019 N.J. Super. Unpub. LEXIS 62, involves a typical fire loss subrogation claim requiring expert testimony from an origin and cause consultant and a furnace consultant. The facts are straightforward. The Munz home lost heat. Munz called furnace service contractor Ryan, Inc. to check the system and make needed repairs. One month later, a fire originating in the furnace damaged the home. Munz’s insurer paid the first party claim and filed a subrogation action against Ryan, Inc. The underlying liability theory was that the Ryan, Inc. furnace technician should not have repaired the furnace and placed it back into service. Continue reading →

This entry was posted in Evidence.