Torres v. Matsushita Elec. Corp.

• Decision Date: 14 July 2000
• Docket Number: No. 5D98-3385.,5D98-3385.
• Citation: 762 So.2d 1014
• Parties: Jacqueline TORRES and Carlos Torres, etc., Appellant, v. MATSUSHITA ELECTRIC CORPORATION, etc., Appellee.
• Court: Florida District Court of Appeals

762 So.2d 1014

Jacqueline TORRES and Carlos Torres, etc., Appellant, v. MATSUSHITA ELECTRIC CORPORATION, etc., Appellee.

No. 5D98-3385.

District Court of Appeal of Florida, Fifth District.

July 14, 2000.

Brian W. Smith, West Palm Beach, for Appellant.

Esther E. Galicia of George, Hartz, Lundeen, Flagg & Fulmer, Fort Lauderdale, for Appellee.

EN BANC

PER CURIAM.

Jacqueline Torres, after suffering injuries from a fire involving a vacuum cleaner, took pictures of the vacuum and delivered the vacuum to a "safety specialist" who, after examining the vacuum, delivered it to plaintiffs' lawyer who stored it in his garage until it was thrown out with the garbage.

Plaintiffs sued the purported manufacturer of the vacuum which Torres alleges she owned and operated for approximately six years.¹ She claimed liability on two theories: (1) strict liability based on manufacturing defects and (2) negligent design "which directly and in natural and continuous sequence" caused her injury.

Discovery in this cause was completed and pretrial statements had been filed. In her statement, plaintiff listed Jon Draper as an expert witness. Draper, perhaps plaintiffs' only non-medical expert, appears to have been the "safety specialist" to whom the vacuum was originally delivered and who opined in a report: "the most likely cause of the fire in my opinion is heat internally generated in the vacuum causing combustion of the material in the dirt bag or construction material from the vacuum."²

Defendant, upon discovering the spoliation of evidence in this case, moved for dismissal with prejudice claiming:

Defendant MECA is faced with the inability to ... set forth their defense based on the fact that it has been deprived of the opportunity to examine and test the vacuum cleaner at issue in this case. Such an inspection, it should be noted, would constitute a vital aspect of Defendant MECA's investigation and defense of this matter, particularly since they have never had another of the vacuums or similar products they sell or distribute catch fire, let alone "explode." Likewise, without the opportunity to test and inspect the vacuum, the Defendant cannot even confirm that the vacuum cleaner, if any, by which Plaintiff was injured was in fact a Matsushita MC-5190-1. In fact, and as is noted above, the Plaintiffs themselves (as evidenced in paragraph eight of their Complaint) are merely alleging that "based on the circumstances and available evidence, the most likely cause of the fire was a manufacturing and/or design defect within the vacuum cleaner manufactured by Matsushita." The "available evidence" to the Plaintiffs include the vacuum cleaner at issue in this case; however, Defendant MECA has been completely and unfairly deprived of the opportunity to test, analyze, or inspect such evidence.

Plaintiff responded as follows:

In the instant case, both Plaintiff and Defendant are inconvenienced by the loss of the vacuum cleaner, but neither is precluded from asserting their claim or defense. Plaintiff can establish a submissible case by the use of the Greco inference ... and through a theory of defective design. Plaintiffs expert is expected to testify that a design defect existed within the product that caused or contributed to causing Plaintiffs injuries. This can be accomplished through the analysis of an identical unit and information and documents that exist relative to the unit/model number. The Defendant can rebut the design defect theory without an opportunity to inspect or test the vacuum involved in this incident.³ Defendant is free to inspect the unit the Plaintiff intends to use at trial and is in as good a position, if not much better, to evaluate the data and literature regarding the model involved.

The trial court granted the motion to dismiss with prejudice holding:

Plaintiffs expert would have testified at trial in this matter that the fire started in the Defendant's vacuum cleaner. This is a critical issue in this case. The inadvertent or accidental loss or destruction of the vacuum cleaner, while in custody of Plaintiffs attorney ... is a critical issue to the Defendant, as it precludes any form of examination by the Defendant or the Defendant's expert. The Defendant is precluded from testing whether or not it is Defendant's product. Moreover, the Defendant is precluded from testing whether or not the product was modified, and the Defendant is precluded from testing whether or not the product has been broken or misused. The Defendant is further precluded from testing the causation of the fire or any examination of the alleged defective product.

Appellant concedes that its manufacturing defect claim can be proved only with the Greco inference.⁴ Greco v. Bucciconi Eng'g Co., 283 F.Supp. 978 (W.D.Pa.1967). The court in Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981), explained that the most vivid portrayals of the Greco inference are those cases in which the product is consumed by the malfunction so that it is impossible to point with specificity to one of many possible causes. In such cases, the malfunction itself raises an inference that the product was defective and that the defect caused the malfunction. However, this inference may be rebutted, explains Cassisi, by proof of the product's age, the length of the product's use, the severity of its use, the state of its repair, its expected useful life, and whether it was subjected to any abnormal operation.

Because Plaintiff admitted that she kept no receipt, packaging, or warranty materials that came with the vacuum and because the photographs of the vacuum she did maintain (and which are in the record) do not show the make or model number of the machine or even enough of the vacuum to make any reasonable identification, it is only her unchallengeable testimony that the vacuum at issue was designed or manufactured by defendant which ties defendant to this cause. The trial court believed it unfair to permit plaintiffs' unsubstantiated allegation that the alleged defective vacuum was indeed manufactured by defendant when defendant was denied the ability to challenge this critical allegation because of plaintiffs' negligence.

Further, even if the vacuum is connected to this defendant, defendant has been denied the opportunity to determine the actual age of the particular vacuum, its length of service, the severity of its use, its state of repair, and whether it was subjected to any abnormal operation, and it was denied this opportunity because of the negligence of plaintiff through her lawyer. We have found no case in which the Greco inference has been applied when the product, rather than being destroyed by the malfunction, is unavailable because of plaintiff's negligent destruction of evidence. The extension of Greco to spoliation cases would be a precedent which invites fraud.

The trial judge could have merely precluded plaintiff from presenting her expert who had examined the product because her negligence denied defendant the opportunity of having its own independent expert. See Metropolitan Dade County v. Bermudez, 648 So.2d 197, 200 (Fla. 1st DCA 1994)

. But then what would plaintiff have left? She would have only her testimony that this six-year-old vacuum with a design defect which had never previously malfunctioned caught fire on that fateful day. Whether the design defect caused the fire, she cannot say. Without the vacuum cleaner, and expert testimony relating to it, she cannot prove that the fire resulted from the negligence of defendant. She thus hopes to avoid this evidentiary problem by relying on the Greco inference. The trial judge refused to give her this inference because her negligence, not the fact that the product was totally consumed by the malfunction, barred defendant from the opportunity to examine the vacuum.

Appellant urges that even if she is denied expert testimony relating to the particular vacuum involved in this action, she should nevertheless be permitted to proceed on her negligent design theory. Here, she contends, all she needs to prove is that (1) there is a design defect and (2) the design defect caused her injuries. It is (2), the requirement that she prove proximate cause, that is insurmountable under the facts of this case. If the design defect necessarily caused the fire which caused her injury, why did it take six years to do so? In other words, why did the vacuum not burst into flame the first time it was plugged in? If the design defect was such that it would cause a fire only after a certain amount of wear, then reference to the particular vacuum is essential in order to show that such wear occurred—otherwise, no proximate cause. And even if a design defect might have caused the fire after appreciable wear, there are other possible explanations not chargeable to defendant which might also have caused the fire—improper repair, failure to maintain the vacuum, maltreatment of the vacuum (electrical wires frayed and exposed), substitution of parts, etc. Thus, in a design defect case in which the design defect is alleged to be only a potential problem, such as the one herein, reference to the particular vacuum is essential. Without Greco, plaintiff cannot prevail on either theory. We are unwilling to extend Greco to spoliation cases. Therefore, even if the court should have merely stricken the expert witness and denied a Greco inference, rather than dismiss the action as it did, the effect is the same.⁵ All discovery was completed and the court was aware of the parties' positions. It knew that by striking the witness and denying the inference, plaintiff could not, as a matter of law, prevail on either count so it dismissed the action. In DeLong v. A-Top Air Conditioning Co., 710 So.2d 706, 707 (Fla. 3d DCA 1998),

the Third District held:

Michael DeLong and his wife, plaintiffs below, appeal the dismissal of their personal injury action with prejudice based on spoliation of evidence after DeLong

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