In this NYCAL case, it was alleged that the decedent was exposed to asbestos from work he and others in his vicinity performed with Johns Manville (JM) transite pipe. The plaintiff moved for a spoliation charge, alleging that in 1990 JM was grossly negligent in the disappearance of more than 10 banker boxes of business records when transferring headquarters and in 1997 intentionally destroyed another 27 boxes of business records. The documents destroyed in 1997 were done so by James Richert, a former JM employee who also assisted with the headquarters move. JM argued that at most documents were negligently lost in the 1990 move and then negligently disposed of in 1997 to open up work space. JM further argued that the plaintiff failed to show that “(1) it had an obligation to preserve documents, (2) it disposed of documents with a culpable state of mind, (3) it disposed of relevant documents and (4) plaintiff was prejudiced.”
The court ruled in favor of plaintiff and held: “J-M’s lackadaisical, if not intentional, approach to a litigation hold commencing with defendant’s purchase of a company synonymous with asbestos litigation, and in the face of the overwhelming evidence that J-M knew of both the hazards and the long latency period of the disease as far back as 1983, is egregious and in bad faith. Even assuming the good faith nature of Reichert’s destruction of documents, and regardless of the fact that Reichert was only ‘a cost accountant at the Stockton plant’ when he destroyed documents, J-M acted in bad faith by failing to instruct Reichert and other employees to preserve relevant evidence. The fact that the documents were inexplicably lost on J-M’s corporate move, while other documents arrived, amounts to gross negligence at a minimum. Therefore, the relevance of the documents both destroyed and haphazardly lost must be presumed.” The court went on to state: “Plaintiff is entitled to the strongest adverse inference. In Ahroner, 79 AD3d at 483, supra the jury was permitted to infer that the missing documents would not have supported defendant’s defense or contradicted plaintiff’s claims. However, because of J-M’s bad faith and disturbing behavior, plaintiff is entitled to a jury instruction that the jury is not only permitted this inference but is also permitted to infer that the missing documents would have supported plaintiff’s claims.”