VERDICTS & CASE STUDIES

Catastrophic Burn Injury Case Against Yamaha Dismissed for Intentional Spoliation of Evidence

LAS VEGAS, NV - On January 16, 2007, Clark County District Court Judge Elizabeth Gonzalez denied plaintiffs' motion to reconsider her November 14, 2006, order dismissing the plaintiffs complaint against Yamaha for intentional spoliation of evidence in Joseph Provenza, a minor, by and through his father, Michael Provenza; Michael Provenza  and Kim Provenza v. Yamaha Motor Co., LTD.; Yamaha Motor Corporation, U.S.A.; Yamaha Motor Manufacturing Corporation of America; Yamaha Corporation of America; Lemans Corporation; David Bongiorno; San Diego Sportcycles; Fariborz Sadri; and Does 1 through 300, inclusive, Case No. A446708, in the Eighth Judicial District Court of Clark County, Nevada.  

The lawsuit involved a May 5, 2001, accident in Parumph, Nevada in which 13-year-old Joseph Provenza jumped a 15-year-old Yamaha motorcycle resulting in a crash and post-crash fire.  Plaintiff sustained third degree burns over 90% of his body, but survived after many months of intensive care.  Plaintiffs asserted a strict product liability claim against Yamaha with alleged defects in the motorcycle's fuel tank assembly and/or carburetor.  Prior to the accident, the motorcycle had been modified with a scrap wire used to bypass a short in the motorcycle's high voltage ignition wire and/or spark plug cap.

During discovery, Yamaha learned that the post-accident condition of the motorcycle was modified in numerous respects before Yamaha's first inspection.  Judge Gonzalez identified four different post-accident alterations that were most significant in her decision to dismiss the complaint:

• Prior to the filing of the Complaint, plaintiff Michael Provenza admits that he intentionally and knowingly removed the bypass wire placed on the coil wire and threw it on the ground in the storage unit prior to the Yamaha defendants' opportunity to inspect the condition of the subject vehicle.  In deposition, plaintiff Michael Provenza testified he thought the bypass wire might be the cause of the accident and he believed this evidence of modification would interfere with his son's potential lawsuit.
  
• Plaintiff's investigator, Steve Rank, removed the fuel tank mount changing the post accident condition prior to the Yamaha defendants' opportunity to inspect the condition of the subject vehicle.
  
• Plaintiff Michael Provenza, plaintiffs' investigator and/or expert modified the exhaust system following the accident changing the post accident condition prior to Yamaha defendants' opportunity to inspect the condition of the subject vehicle
  
• Plaintiff Michael Provenza, plaintiffs' investigator and/or expert modified the condition and position of the spark plug and its cap changing the post accident condition prior to the Yamaha defendants' opportunity to inspect the condition of the subject vehicle.

Yamaha moved to dismiss plaintiffs' claims for intentional evidence spoliation and for discovery fraud.  The court held hearings on four separate days, including a two day evidentiary hearing at which Yamaha presented testimony from five expert witnesses. 

All of Yamaha's experts testified regarding the importance of the spoliated evidence and the prejudice to Yamaha from the spoliation.  Plaintiffs' expert, Dr. Knuth, confirmed testimony from Yamaha's experts about the importance of the preservation of fire scene evidence.  Dr. Knuth ultimately testified that, had he been involved, he would have prevented the spoliation form occurring:

And if the plaintiffs' lawyers had hired you instead of Mr. Todd or Mr. [Rank], and had come to you and said, hey, we want to take the muffler off, the fuel tank bracket off, the wire off, would you have said, you know what, guys, you can't do it, you gotta give Yamaha notice, an opportunity to inspect, and you've got to do it because this is physical evidence and under NFPA 921 and commonly accepted litigation standards, that's your obligation; correct?

The witness:  Yes

Following the evidentiary hearing and arguments of counsel, the court found plaintiffs' evidence spoliation to range from "willful" to "sloppy preservation" and found that a fair adjudication on the merits was no longer possible:

• There are varying degrees of willfulness of the plaintiffs and their agents ranging from knowing, willful and intentional conduct with an intent to prevent the Yamaha defendants' being able to identify the true post-accident condition and cause of the accident to sloppy preservation of evidence.  However, the multiple incidents of spoliation are so pervasive as to exacerbate the prejudice rather than if each instance were treated as an isolated incident of spoliation.
  
• A fair adjudication of the merits cannot be achieved given the numerous instances of spoliation of relevant evidence and the prejudice to the Yamaha defendants in preparing a defense in this action.
  
• Given the numerous instances of spoliation, the prejudice to the Yamaha defendants in preparing their defense and the repeated nature of plaintiffs and plaintiffs' agents conduct over a several month period, a sanction less severe than dismissal of the remaining plaintiffs' claims is not sufficient to protect the rights of the Yamaha defendants.
  
• Given the involvement of plaintiff Michael Provenza in conjunction with the investigators employed by his attorneys' sanctions do not unfairly penalize the remaining plaintiffs for the conduct of their agents.
  
• There is a public policy to prevent further abuses and deter parents in a potential litigation context from intentionally destroying evidence in an attempt to advance the claims of a child.

The court also found that there were "inaccuracies and inconsistencies in plaintiffs' discovery responses and depositions as to issues related to the spoliation which compound the effect of the prejudice."  Accordingly, the court granted Yamaha's motions and dismissed plaintiffs' complaint against Yamaha. 

Provenza v. Yamaha
Case No.:  A446708
Judge Elizabeth Gonzalez

Attorneys for Defense:
Paul G. Cereghini, Thomas C. Howard of Bowman and Brooke's Phoenix office and Greg W. Marsh of the Law Offices of Greg W. Marsh of Las Vegas

Attorneys for Plaintiffs:
Joseph W. Carcione, Jr. and Gary Dolinski with Carcione, Cattermole, Dolinski, Stucky, Ukshini, Markowitz & Carcione, LLP, of Redwood City, CA,; Bradley Paul Elley,  Incline Village, NV; Laurence E. Drivon of  Drivon & Tabak, Stockton, CA; Robert T. Eglet of Mainor Eglet Cottle, LLP, Las Vegas, NV

Experts appearing at trial for Defense:
Dr. Roger McCarthy, mechanical engineer and risk analysis, Menlo Park, CA; Dr. Graeme Fowler, vehicle design and accident reconstruction, Menlo Park, CA; Dr. Harri Kytomaa, fire cause and origin, Boston, MA; Dr. Andrew Neuhalfen, electrical and fire cause and origin, Naperville, IL; Kris Kubly, motorcycle design, Madison, WI

Experts appearing at trial for Plaintiffs:
Dr. Eldon Knuth, fire cause and origin, Los Angeles, CA