Evidence Preservation Can Make or Break a Product-Defect Death Case: Hetzer-Young v. Elano

Published April 15, 2014 · Ohio Appeals Courts

Three people died in a small-plane crash in southern Ohio in 2005. Their families believed a defective muffler made by a Greene County company caused the engine to lose power. Nine years later, their case has never been heard by a jury, not because of anything the jury would decide, but because of a fight over a single piece of metal that was cut open during an inspection months after the crash. On March 21, 2014, the Second District Court of Appeals, sitting in Greene County, gave those families their case back. Hetzer-Young v. Elano Corp., 2014-Ohio-1104, is a decision every family pursuing a product-defect claim in the Dayton area should understand, because the lesson is about what happens to the evidence in the first weeks and months.

The crash and the muffler

On March 13, 2005, Dr. Michael Young took his daughter Ginny and her boyfriend Charles Lampe for a short flight in his 1974 Grumman airplane near the Lawrence County airport in Chesapeake, Ohio. On a second approach the plane cleared trees at the end of the runway, stalled, crashed, and burned. All three died.

The families' theory was that the muffler's internal components had deteriorated, plugging the exhaust and causing the engine to lose power on the climb. The muffler was made by Elano Corporation, a Greene County manufacturer later owned by Unison Industries. After the National Transportation Safety Board released the wreckage, the parties held a series of joint inspections. At one of them, in December 2005, the muffler's outlet had been so crushed by the impact that no one could see inside. With the airplane's insurer, the engine manufacturer, and the families' expert all present, everyone agreed to use a precision milling machine to open the muffler canister so the internal parts could be examined. Years later, in 2008, the manufacturer's own expert cut the muffler into separate pieces.

What "spoliation" means

Spoliation is the legal term for destroying, altering, or losing evidence that a party knew or should have known would matter in a lawsuit. Courts take it seriously, and they should. If a plaintiff's expert takes apart a product before the manufacturer gets to look at it, the manufacturer may be unable to show that the product was not defective. In that situation an Ohio court can impose sanctions, which range from telling the jury it may assume the missing evidence was unfavorable, up to barring expert testimony or dismissing the case outright.

The Second District explained the test. The defendant must first show that the evidence was relevant, that the plaintiff's expert had a chance to examine it unaltered, and that it was intentionally or negligently altered without giving the defense a chance to inspect. If those things are shown, the plaintiff must prove the defense was not actually prejudiced. The trial court then has to measure the degree of prejudice and impose a sanction that fits it.

What the trial court did

In November 2012, shortly before the discovery deadline, Unison moved for sanctions, arguing that the families had spoiled the evidence by opening the muffler without first using a borescope to photograph the inside, and by making it impossible to perform a back-pressure test on the sealed canister. The trial court agreed and imposed the harshest practical sanction short of dismissal: it barred every one of the families' experts from testifying about the condition of the muffler, the deterioration of its internal parts, and any resulting loss of engine power. With no expert able to explain causation, the court then granted summary judgment to the manufacturer. The case was over.

Why the appeals court reversed

The Second District held that the sanction was an abuse of discretion, for reasons that are practical rather than technical.

First, the supposedly spoiled evidence had little value to begin with. The muffler had been crushed in the crash. Testing a crushed muffler for back pressure, the court said, would be of marginal, if not questionable, relevance to how the muffler performed before the crash.

Second, the opening of the canister caused no real prejudice. The families had submitted expert evidence that a muffler cut the same way could be resealed and would perform the same as the original in a pressure test. The manufacturer never asked to reseal it during the years of inspections that followed, and when it finally raised spoliation it cut the muffler into pieces itself, which is what actually made resealing impossible.

Third, the manufacturer's own expert had already done the testing he claimed he could not do, using an identical intact muffler and even a muffler modified to mimic the worst possible blockage. He concluded that no amount of back pressure would have cost the engine meaningful power. In other words, the defense had a full opportunity to make its case; it simply disagreed with the families' experts, which is what trials are for.

Finally, the court noted Ohio's general policy of imposing the least severe sanction that fits the prejudice, reserving the harshest for bad faith. A sanction that wiped out all of the plaintiffs' causation evidence, for an alteration that caused little or no prejudice, was unreasonable. Because the summary judgment rested entirely on that sanction, it fell as well. The case goes back to Greene County for further proceedings.

To be clear about what this means: the families have not won. The court decided only that they are entitled to present their experts and have the causation question decided on the evidence. The manufacturer will still argue that pilot error caused the crash, and a jury may agree.

The lesson for families: control the evidence from day one

Product-defect cases are won and lost on the product. A tire, a seat belt, a ladder, a space heater, a muffler: if it is thrown away, repaired, or taken apart carelessly, the claim can die with it. From the families' side, the steps that protect a case are straightforward but time-sensitive.

• Secure the product immediately. Vehicles are sold for salvage within weeks. Insurers and repair shops discard parts. A written preservation demand to everyone who has custody should go out in the first days.
• Photograph and document before anyone touches anything. We discussed how to document a crash scene in our post on crash-scene photographs and evidence; the same principle applies to a product, on a larger scale.
• Give the other side notice and an invitation before any destructive testing. The inspections in Hetzer-Young were joint, with the insurer and the engine manufacturer present and agreeing to the procedure. That record is what ultimately saved the case. Had the families' expert cut the muffler open alone, the result could have been different.
• Keep a written protocol. Who was present, what was done, why, and what alternatives were considered. The defense in this case was able to argue for years about a decision made in a single afternoon in 2005.

Why these cases are worth pursuing

Wrongful-death claims against manufacturers are expensive and slow, and this case shows why: multiple inspections, competing engineers, a federal statute of repose fight in an earlier appeal, and now nine years of litigation. But they are also the only way a family receives accountability from a company whose product failed. Ohio's wrongful-death law lets the surviving spouse, children, and parents recover for their loss, as we explained in our post on who can bring a wrongful-death claim, and the damages in a case involving three deaths are substantial. Our wrongful death practice and broader personal injury practice are built to carry that kind of case the full distance.

What this means for you

If a family member was killed or seriously hurt and you suspect a product failed, the most important thing you can do this week is make sure the product is preserved, untouched, and documented, and that a lawyer, not an insurance adjuster, decides who inspects it and how. Hetzer-Young shows how much can turn on that decision, and how a careful record of a joint inspection can save a case years later.