Railroads manufacture mountains of paperwork. And every year Railroads routinely destroy some of their old business records.
But what if the old files a Railroad throws in the trash were needed to help prove an Injured Employee’s lawsuit under the FELA - Federal Employers’ Liability Act?
Can a Railroad get away with tossing out old files if it knew – or if it should have known – that the old paperwork was needed for a lawsuit?
The answer is “No!”
When a Defendant destroys documents they knew, or should have known, were needed for a lawsuit, this is called “spoliation of evidence.”
One of the remedies a Judge can apply when a Defendant “spoils” or destroys evidence – in a case where the Defendant knew or should have known the evidence was needed for a lawsuit – is to tell the Jurors they can conclude that the destroyed evidence would have hurt the Defendant.
A good example of this remedy for “spoliation of evidence” is a lawsuit that Neil Pace filed against Amtrak. The case is Pace v. National Railroad Passenger Corporation, 2003 U.S. Dist. Lexis 21598 (December 1, 2003). As recounted by Judge Janet C. Hall (a Federal Judge in Connecticut), Neil Pace worked as a conductor for Amtrak. He filed an FELA case alleging that he tripped on buffer plates while walking between railroad cars. According to Pace, Amtrak was negligent in failing to properly maintain the buffer plates. The damage caused by this work accident include two herniated lumbar discs.
To help prove Amtrak’s negligence, Pace’s attorney wanted the inspection reports and maintenance records for the buffer plates. But Amtrak claimed it “routinely” destroyed these documents before Pace filed his lawsuit.
Judge Hall gave the Jury an “Instruction” on the destroyed evidence. Along with explaining to the Jurors what Pace had to prove in order to win his FELA case, the Judge told the Jurors:
“The plaintiff claims that the railroad failed to maintain inspection and maintenance records from the train cars involved in the accident. If you find that: (1) the records at issue would be relevant to the claims made by the plaintiff; (2) that the records were destroyed; and (3) by the time the records were destroyed, the railroad knew or reasonably should have known they would be relevant in litigation that was reasonably foreseeable, then you may infer that the contents of these destroyed records would be harmful to the railroad’s position in this case. You need not draw this inference; I merely instruct you that you may.”
In other words, the Judge told the Jurors they could conclude that the records destroyed by Amtrak would have hurt Amtrak, if the Railroad knew or should have known – when the documents were destroyed – that it was reasonably likely Pace would be filing a lawsuit.
After hearing this Instruction on Spoliation, the Jury decided Amtrak was negligent, and that Pace’s damages were $2.6 million (though this was reduced 75% based contributory negligence).
Amtrak filed a motion asking for a new trial. The Railroad argued that Judge Hall supposedly erred in giving this Instruction on destroyed documents.
Denying Amtrak's motion, Hall explained why she gave the Jurors this Instruction.
Pace was injured in July 1999, and he filed a lawsuit in September 2001. But Amtrak says it “routinely” destroyed the key inspection and maintenance records in July 2001. And Amtrak claims it didn’t know in July 2001 that Pace would be filing an FELA claim.
Judge Hall wasn’t buying what Amtrak was peddling.
Pace had surgery in May 2000. And in December 2000, Pace’s surgeon concluded Pace had reached what would be his maximum possible recovery. By February 2000, Amtrak was secretly videotaping Pace to see if he was really disabled. This surveillance continued until August 2000. Then, in May 2001, Amtrak sent Pace to a Doctor for an “Independent Medical Examination,” to see if he had really reached maximum recovery.
Judge Hall concluded that by May 2001, at the latest, Amtrak knew, or should have known, that Pace would be filing a lawsuit, and that the inspection records for the buffer plates would be important evidence.
A Spoliation Instruction can be given when a Defendant intentionally acted to destroy important evidence. But, the Judge explained, a Spoliation Instruction is also proper when a Defendant negligently or carelessly destroyed documents that it should have known were needed for trial.
When Amtrak destroyed the inspection records in July 2001, it was reasonably foreseeable that Pace would be filing an FELA claim. The Spoliation Instruction was proper, Hall concluded, both to remedy the harm suffered by Pace, and to “deter” other Railroads from destroying evidence they know – or should know – is needed for an FELA case.
Railroads that destroy important evidence run the risk of a Spoliation Instruction.