Court issues sanctions to plaintiff for discovery abuses

In the case of Deborah S. Teeples v. BIC USA, venued in the U.S. District Court for the Middle District of Tennessee, the trial court issued a decision sanctioning the plaintiff for spoliation of evidence (defined as destruction or alteration of evidence) and failure to preserve key witness testimony.

This case presents a common issue that propane retailers face when involved in lawsuits. In a general sense, all claims or incidents require attention to preservation of all evidence that might be used in a subsequent lawsuit. It is important to get counsel involved at the early stages of any incident to ensure that you do not face the sanctions that were imposed in this case.

This case occurred in December 2019 in Tennessee. It involves a claimed fire that injured Charlotte Boze while she was attempting to light a cigarette in her kitchen. Her son, Billy, was in another room on the opposite side of the home when he heard a scream and ran to his mother. He claimed he put out the fire on her shirt, wrapped his mother in a blanket and took her to the hospital. Along the way, he said his mother told him, “The lighter, I reckon, didn’t go out because my shirt caught fire.” At the hospital, he called several of his siblings and “said something about the lighter not going out.”

He returned home and cleaned up the mess and put the lighter and cigarettes on the windowsill in the kitchen. He did not find the burned cigarette his mother would have been smoking. He does not recall where his mother’s other clothes or shoes were.

Within a month of the fire, Boze’s son and Deborah Teeples, who represents Boze’s estate in the lawsuit, discussed hiring an attorney as they suspected the BIC lighter malfunctioned. Three weeks later, they hired a lawyer to represent Boze.

Plaintiff’s counsel hired an expert shortly thereafter. Neither plaintiff’s counsel nor his expert ever visited Boze’s home where the fire occurred and never retained any evidence. BIC was never given the opportunity to investigate the scene, examine the BIC lighter, the clothing Boze was wearing, any other sources of ignition in the home or anything that might have helped the company understand and defend itself against the lawsuit.

When she left the hospital, Boze moved in with Teeples, who described Boze as being “very much with it.” This was in early 2020. The plaintiff filed the lawsuit on Nov. 2, 2020. Boze’s health began to deteriorate in the coming months. All parties agree that Boze was competent to testify truthfully under oath in a deposition until March 2021. Plaintiff’s counsel never notified counsel for BIC of Boze’s deteriorating health so that it could take her deposition. She died on May 31, 2021, before her deposition could be taken. The court noted that “[The plaintiff’s] failure to consider the principles of fundamental fairness to BIC was, at best, reckless, and denied BIC the ability to question the only witness to the fire at issue.”

The court ultimately ruled that the plaintiff was prohibited from using: 1. Any evidence of or arising from statements purportedly made by Boze, the decedent, about the cause of the fire; and 2. Any testimony or opinions that are based on evidence identified by BIC as being spoliated, meaning the party failed to preserve it, and so the evidence was destroyed or altered.

While the court did not dismiss this case outright, as a practical matter, it gutted the essence of the plaintiff’s case. The only person who testified that the BIC lighter failed to go out and caused her clothing to catch on fire was Boze. That cannot be used as evidence. Her son cannot testify to what his mom told him for the same reasons. It does not appear there was any evidence actually retained to use for trial by the plaintiff. But this order prevents the plaintiff from referencing any evidence, as it was destroyed.

The takeaway here is that evidence preservation is imperative in possible claims and lawsuits. The best person to gather evidence is an expert, usually an origin and cause investigator/expert, that defense counsel retains. These experts are trained in how to document potential evidence “in situ” (in the place it is found). To conduct any necessary testing before it is moved in conjunction with other parties that may have an interest in the claim or lawsuit.

Evidence retention is not limited to what is found at a fire or explosion scene. It includes all electronic data, service and delivery records, CSR files, call logs, bills of lading, etc.

This is a cautionary tale of how not to preserve evidence. It is worth taking note.