Leaving a vehicle sitting around in a salvage yard while you investigate a potential products liability claim would be similar to a drug agent leaving a bag of cocaine laying around at the crime scene or in the seat of his car while he investigated a potential crime. If you are going to practice in the products liability area, you must have procedures in place and a staff trained to carry them out to the letter or you open yourself up to a serious risk of committing legal malpractice. If you have been engaged by a client who may have a products liability claim and do not intend to pursue that claim personally, you must still make sure that your client’s evidence has been preserved either by immediately engaging products liability counsel or by arranging for the preservation of the evidence yourself. The final part of this presentation will address the practical aspects of preserving your clients’ evidence and claims.
1. Preservation of Accident Vehicles
The first step after identifying a potential products case is to ask the question, “Where is the vehicle?” If the client doesn’t know, and the crash was recent, the vehicle can usually be found after a few calls to the property insurance carrier, the investigative agency, or the vehicle’s owner who may, if they don’t know where the vehicle is, may have information about the towing company that was at the accident scene and took the vehicle.
Immediately after locating the vehicle, the attorney should fax a “Do Not Destroy” letter to the facility where the vehicle is being kept. The letter will put the recipient on notice that the vehicle is evidence in a potential product liability suit, and that the vehicle must not be altered, destroyed, or released. The letter should also convey a request to take immediate possession of the vehicle and agree to pay for the salvage value if necessary. Duplicate copies should be faxed to the carrier and to the vehicle owner. The attorney should then very quickly follow up the letter with a phone call to make arrangements to take possession of the vehicle. Click here for a sample “Do Not Destroy Letter.”
The importance of acting quickly to preserve the vehicle cannot be overemphasized. Most property insurance adjusters have strict procedures that require them to move their wrecked vehicles through the system as quickly as possible to save on storage costs. Often, unless the carrier receives a “Do Not Destroy” letter, the vehicle will be sold and scrapped within 30 days after the crash. Therefore, it is imperative that the vehicle is immediately preserved.
Once arrangements have been made with the carrier, the attorney must take physical possession of the vehicle. Towing on a hook can damage the vehicle and cause shifting and jarring of parts, so the vehicle should be towed on a dolly to a locked facility. No one other than the plaintiffs’ law firm should have access to the vehicle. This prevents needless chain of custody issues and other potential issues of evidence tampering or spoliation of evidence, that sometimes arise when multiple parties in a suit have shared access to a vehicle.
The facility where the vehicle is stored must be secure, covered, and protected from the elements. Unless the vehicle is kept in such a facility, the attorney may again face allegations of malpractice for spoliation of evidence. Exposure to weather causes vehicles to rust and deteriorate which often alters critical evidentiary elements. For example, a single hair in a headliner, which might be the crucial fact in identifying the cause of a client’s injury might not be preserved if left exposed to wind and weather. Or, as another example, exposed steel belts in a tread separation case can quickly corrode if exposed to moisture, completely losing their evidentiary value. Mini-warehouse units are generally a safe location to store vehicles, unless the firm has access to a larger secure facility.
2. Preservation of the Accident Scene
Preserving the scene in a potential products action requires a more extensive process than that used by most local investigators, police agencies and even your state’s Highway Patrol. Typically, unless there is a fatality, highway patrol crash reports will only include a sketch of the scene and a skeletal outline of the facts. Even with a Homicide Investigation Report there is RARELY sufficient documentation to gather the level of detailed information that will be required by the better experts who testify for plaintiffs against the automotive industry. Similarly, most local accident reconstruction experts will fail to adequately document the scene with the level of detail and specificity needed by higher-end design engineering experts.
Of utmost importance to properly preserve the scene is the timing of the site visit. Every day that passes after an accident, evidence is lost. As soon as the attorney determines that there is a possible auto products case, a team should be sent to the scene to document all of the evidence both on-road and off-road. The team should be familiar with survey equipment and use the equipment to carefully measure all on and off-road gouge marks, yaw marks, skid marks, etc. The scene should also be carefully surveyed both at the immediate crash site and well upstream of the crash. This information will become important when recreating the accident sequence and may also be important in resolving conflicts or refuting eyewitness evidence regarding the accident.
3. Preservation of Scene Debris or Other Evidence
All remaining physical evidence or vehicle debris located at the scene should be carefully collected, bagged, marked, and coordinated on the survey report. This evidence should also be documented on a chain of custody chart with the initials of the person responsible for collecting and documenting the evidence noted.
For certain cases, such as tread separation case, there should be an exhaustive search for any missing component parts that may have contributed to the accident. A piece of missing tread for example, may have been easily missed by the highway patrol officers., but found a day later by a careful investigative team. In the case of a tire blow out or tread separation, any and all pieces of tread found should be collected. Your experts will have no difficulty discerning whether any of the pieces of tread collected came from tires that were not involved in your accident.
Finally, the entire scene should be thoroughly photographed and videotaped. There should be at least one photo taken of each piece of evidence or debris that is found at the scene prior to its collection. The photograph should be adequately marked or taken with an identifying number in the photograph to enable easy correlation to the survey. This will reflect the location at the scene where the evidence is found. When filed, all photographs should be clearly marked and dated with the name of the person who took the photos clearly identified.
4. Witness Interviews
Witness interviews should also be conducted as soon as possible. The investigating officers who were present on the scene following the accident must be interviewed. It is most helpful to have the investigating officers meet the attorney at the scene to walk through their recollection of the events and the evidence. If possible, it is most beneficial to obtain recorded statements. Similarly, interviews and recorded statements from all other eyewitnesses should be obtained if at all possible.
5. Disposition of Evidence
It is essential to take precautions in disposing of vehicles and evidence both after the successful conclusion of a case or after declining to prosecute a case after the initial investigation. Under both circumstances the attorney should fully explain the situation to the client, explain that the evidence will be released unless the client wishes to make arrangements to have the evidence preserved and that, if the evidence is not preserved by the client, the client will be unable to further pursue a products liability claim. To the extent there are other victims of the same crash, the attorney should also put the other potential victims on written notice before any evidence is released.