Henkel Corp. v. Polyglass USA, Inc.

194 F.R.D. 454, 47 Fed. R. Serv. 3d 357, 2000 U.S. Dist. LEXIS 9423, 2000 WL 913985
CourtDistrict Court, E.D. New York
DecidedJune 26, 2000
DocketNo. 96 CV 5710
StatusPublished
Cited by13 cases

This text of 194 F.R.D. 454 (Henkel Corp. v. Polyglass USA, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454, 47 Fed. R. Serv. 3d 357, 2000 U.S. Dist. LEXIS 9423, 2000 WL 913985 (E.D.N.Y. 2000).

Opinion

MEMORANDUM AND ORDER

NICKERSON, District Judge.

Plaintiff Henkel Corp. (“Henkel”) brings this diversity action against defendant Poly-glass USA, Inc. (“Polyglass”) to-recover for property damage to plaintiffs warehouse building caused by a fire. Plaintiff alleges defendant is responsible for the fire damage because of defendant’s torch-applied roofing material, which plaintiff alleges was manufactured and supplied in an inherently dangerous manner. Defendant moves to preclude plaintiff from providing any evidence at trial regarding the cause and origin of the subject fire because of plaintiffs alleged spoliation of the evidence, and for summary judgment under Federal Rule of Civil Procedure 56.

I

The record, in substance, shows the following.

On March 26, 1999, Liladhar Ramcharan, an employee of plaintiff was making repairs to a leak in the roof of plaintiffs warehouse located at 126 Sutton Street. To patch the leak, Ramcharan applied a roofing polyester membrane material sold under the brand name “Polybond,” manufactured by defendant Polyglass.

The Polybond material was packaged in rolls and stored on pallets with other rolls of Polybond. Ramcharan laid out approximately five rolls of the Polybond material over certain areas of the roof and had to use a [455]*455propane torch to melt the material so it would stick in place. Ramcharan stated in his deposition that he worked on the roof from approximately 1:00 p.m. until 4:00 p.m., when he says he turned the torch off. Because the roof was made of wood and using the torch created a fire risk, Ramcharan claims that he returned to the roof at 4:30 p.m., 6:30 p.m., and 7:00 p.m. to check for any small or hidden fires and found none.

During the evening of the day that Ram-charan worked on the roof, a fire began. According to the Fire and Incident Report, written by the New York City Bureau of Fire Investigation (“Fire Report”), a “fire originated on the roof of the building on the East Side ... in combustible material (roofing material).” The “[f]ire caused the collapse of [the] roof,” resulting in substantial damage to the building and its contents. The Fire Report states the “Cause of Fire” as “Probably Heat From Open Flame” and lists the “Incident Time” as 8:55 p.m. The report also explains that an “[examination [of the premises was] precluded due to collapse of roof into building.”

On March 28,1996, two days after the fire, William F. Nolan, a fire analysis expert hired by plaintiff, inspected the scene of the fire in order to determine its origin and cause. Nolan inspected the fire scene, including an examination of what remained of the roof, and interviewed several employees, including Ramcharan, whereupon he learned of Ram-eharan’s application of the Polybond material. Nolan found an unused pallet of Poly-bond and removed a “hunk” of the material from the roll “with the name [P]olybond on it.” Nolan also took 121 photographs of the fire scene, one of which depicts the pallet of unused Polybond rolls. That picture shows, among other things, the words “Polybond” and “Polyglass” printed on the unused rolls in large block letters.

Based on his inspection and interviews, Nolan concluded that “Ramcharan ... ignited combustible materials within the roof’ while he was applying the Polybond material with the torch. In particular, Nolan determined from “observable burn patterns” and the conditions surrounding the fire that it began in the roof area around a “wooden skylight” and spread to the portion of the roof over a laboratory, causing both areas of the roof to collapse.

Plaintiff also hired the Held Development Corp. (“Held”) to inspect the building and to perform any necessary shoring or demolition work. On April 1,1996, Held informed plaintiff that portions of the remaining walls were in an “imminently hazardous condition” and that immediate work was necessary. According to plaintiff, Held could not perform the shoring work unless it “remove[d] the fire debris.” Held began the work on April 15, 1996, nearly three weeks after the fire, and completed the project on May 8, 1996.

Aside from Nolan’s sample of unused Poly-bond material, the propane torch used by Ramcharan to apply the Polybond was the only other item preserved from the fire scene.

Defendant Polyglass first learned of the fire when it received service of the summons and complaint in this lawsuit on or about December 3, 1996. Defendant hired John Campbell, a fire analysis expert, to evaluate the available evidence, including the deposition transcripts, photographs, the Fire Report, and discovery responses, in order to make its own determination of the origin and cause of the fire.

Campbell states in a sworn affidavit that Nolan’s conclusions about the origin and cause of the fire were inconsistent with the evidence. In particular, Campbell cites the time lapse of four hours and fifty-five minutes between the last torch use and the detection of the fire, the unlikelihood of the fire starting in the roof area around the ■wooden skylight, and the observations of the Fire Department at the fire scene.

Moreover, Campbell notes that by clearing the fire debris, Polyglass has been precluded “from having an opportunity to perform a similar investigation of the fire scene.” The photographs and field notes of Nolan, according to Campbell, “do not contain sufficient detail to provide reasonable assistance in determining the cause and origin of the fire,” and plaintiff did not preserve any alternate sources of heat or fire or any of the actual materials showing the burn patterns alleged[456]*456ly observed by Nolan. Because of these circumstances, Campbell states that “it is impossible for me or any other qualified expert to reach any conclusions as to the cause and origin of the subject fire.”

II

Defendant Polyglass argues that plaintiffs spoliation of the evidence warrants the sanction of precluding plaintiff from offering any evidence as to the cause and origin of the fire. If granted, this sanction would result in summary judgment for defendant because plaintiff would then be unable to make out its prima facie case.

Plaintiff counters that there has been no spoliation of evidence, that it did not know the identity of Polybond’s manufacturer until May 23, 1996, nearly two months after the fire, and that defendant has not suffered any prejudice in its ability to establish its defense.

To determine whether this Court should exercise its inherent authority to impose sanctions for spoliation of evidence, “a threshold question is whether a party had any obligation to preserve the evidence.” See Shaffer v. RWP Group, Inc., 169 F.R.D. 19, 24 (E.D.N.Y.1996) (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68 (S.D.N.Y.1991)). If a party did have an obligation to preserve evidence, the degree of that party’s culpability and the amount of prejudice caused by its actions will determine the severity of the sanction to be imposed. See id. at 25.

A party’s obligation to preserve evidence arises when it has notice of the evidence’s relevance to litigation already commenced or “likely to be commenced.” Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y.1991).

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Bluebook (online)
194 F.R.D. 454, 47 Fed. R. Serv. 3d 357, 2000 U.S. Dist. LEXIS 9423, 2000 WL 913985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henkel-corp-v-polyglass-usa-inc-nyed-2000.