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June 23, 1994



The opinion of the court was delivered by: EDWARD A. BOBRICK




 Report and Recommendation of Magistrate Judge Edward A. Bobrick

 Before the court is a Motion for Sanctions for Evidence Spoilation [sic] *fn1" filed by defendants SUNBEAM CORPORATION and SUNBEAM LEISURE PRODUCTS COMPANY, a division of SUNBEAM CORPORATION'S ("Sunbeam").


 On July 4, 1990, a fire damaged the house of Benito and Eutimia Garcia. The fire has precipitated two suits. The Garcias filed a products-liability suit No. 92 C 4897, in this court, against defendant Sunbeam Corporation (Sunbeam) alleging that a propane-fueled gas outdoor grill manufactured by Sunbeam was defective or unreasonably dangerous and responsible for the fire. The Garcias insurer, plaintiff Allstate Insurance Co. (Allstate), subsequently exercised its right of subrogation under the Garcias' homeowner's insurance policy and brought this companion suit against Sunbeam. Both suits were initially filed in the Circuit Court of Cook County, Illinois, and were removed by Sunbeam pursuant to 28 U.S.C. § 1441(a) on the basis of diversity of citizenship under 28 U.S.C. § 1332. The suits have not been consolidated.

 Sunbeam has moved to dismiss this action because Allstate, in its investigation of the fire, failed to preserve certain evidence Sunbeam contends is essential for its defense. The motion was referred to this court for hearing and for a Report and Recommendation. A hearing was held November 2 and 3, 1993, at which Sunbeam's expert, William Baynes, testified; the testimony of other witnesses was offered through depositions. A home video tape of the fire scene taken the same day of the fire and an Allstate investigator's photographs of the scene were also received into evidence. The record in this matter was closed on February 2, 1994, and the matter fully briefed on March 18, 1994. After considering the testimony and examining the video and photographic exhibits, we recommend that the motion be granted.


 The testimony and its significance will be easier to understand if we briefly state the parties' theories. The parties agree that the fire that damaged the Garcias' house was caused by a release of propane gas at the grill, which was then ignited by the grill, creating huge flames erupting against the back wall of the house, entering the basement and kitchen windows, and shooting into parts of the Garcia's backyard. The grill itself burns propane, a form of LP (liquefied petroleum) gas, which is stored in a cylinder (tank) intended to hold twenty pounds of liquified gas under pressure.

 Allstate contends that the fire started as a leak somewhere in the "gas train," the system of pipes, valves and hoses conveying gas from the cylinder to the burners in the grill. The fire grew until it overheated the propane tank, causing it to vent a large quantity of propane. Allstate maintains that had the grill been equipped with a thermal shutoff or safety disconnect device, the fire would not have overheated the tank and the catastrophic fire would have been prevented.

 Sunbeam, on the other hand, contends that it is more likely that a spare tank of propane had been stored beneath or directly behind the grill, and that this spare tank had been overfilled with liquid propane, leaving insufficient room for expansion of the liquid propane, said expansion being brought on by heat from the sun, the hot ambient air, and the nearby operating grill. This expansion of the liquid, in turn, filled the tank beyond its capacity causing the relief valve to open releasing the liquid propane as a gas into the underside of the grill, where, by the natural upward flow of air (convection currents), it was drawn in contact with the burners. The gas would have ignited from the then burning burners in the grill, generating even more heat onto the second tank, thereby increasing the pressure within that tank until there was a massive release of flaming gas from its relief valve. Heat from the flames coming from the relief valve of the second tank would then have caused the service tank connected to the grill to overheat, become overpressurized, and to vent and flame as well, all of which caused the inferno that ran from the swimming pool to the back of the Garcias' house. In support of this theory, Sunbeam points to photographs of the scene taken by investigators two days after the fire, as well as a home video tape taken by the Garcias approximately 8 hours after the fire, all of which show a second propane tank among the remains of the grill, in addition to the service tank used for fueling the grill at the time. In addition, the photographs showed possible burn marks on the second cylinder as well as burn patterns on the house and backyard swimming pool that suggests that two burning propane tanks were involved.

 Sunbeam argues that if its theory of what happened is correct, then it could not be at fault because (a) it was not responsible for the second tank being overfilled and being stored in close proximity to the grill, contrary to the user instructions, and (b) the safety devices suggested by Allstate would not have prevented the catastrophic fire since they would not have interfered with the normal operation of the relief valve which is designed to vent in the event of overpressurization (as caused by the significant heating in this case).

 Sunbeam has a major difficulty, however, in proving its theory: first, the second tank shown in the photographs, and clearly depicted on the video tape, cannot be found or examined. Second, the grill frame and wood accessories, which could have shown burn marks and patterns supporting Sunbeams theory, are also nowhere to be found. There is no secret, however, behind the absence of this evidence. Shortly after the fire, an Allstate investigator, in the performance of a fire investigation, preserved only the service tank that was connected to the grill, the connecting fittings, the remains of the regulator, and the remains of the burners (but not the separate third burner above the tank). He directed that everything else be thrown away, which included -- the third burner, the grill frame (the firebox had melted), any wood accessory remnants, and the second propane tank shown in the video tape and photographs. Sunbeam contends that the absence of this physical evidence cripples its defense. Since the evidence was discarded at Allstate's direction, Sunbeam asks the court to sanction Allstate by dismissing this suit.

 Allstate responds that the lost evidence was not material because there was, in fact, no second tank near the grill. Allstate supports its denial of the existence of a second tank near the grill with eyewitness deposition testimony to the effect that only one tank was involved in the fire, and that the second tank on the premises was located a considerable distance away from the grill and was, in any event, empty. According to Allstate, in the confusion following the fire, somebody must have moved the second tank near the remains of the grill.

 On the day of the hearing Allstate offered a motion in limine seeking to bar testimony concerning the possibility that a second tank caused the fire, contending that Illinois law prohibits the use of expert testimony to "reconstruct" an accident according to a hypothesis denied by all of the eyewitnesses. The motion was taken under advisement, and we will address it below.


 With these theories in mind, we review the evidence. On the day of the fire, July 4, 1990, the Garcias' daughter and son-in-law, Lourdes and Bellarmino Sagols, were visiting them. Lourdes was sunbathing in a lounge chair in the backyard, while her son played in an above-ground swimming pool. The grill was located on a concrete patio and stood three or four feet from the back (east) wall of the house. To the north was a gangway between the Garcias' house and the neighboring house, and the back door of the house opened onto this walkway.

 The grill had a large firebox and a hood that covered it. The gas burners in the firebox were covered by a layer of ceramic briquettes. There were control knobs in front of and underneath the firebox. On the left side of the grill was a propane cylinder mounted on a bracket and above it an additional gas burner similar to that on a kitchen range. The frame of the grill had an attached wooden front panel and was open on the other three sides. (See photograph of advertising material, Pl. Ex. B).

 At approximately 11 a.m., Bellarmino Sagols lit the grill. After satisfying himself that the grill was lit and working properly, he left to go to the store. About ten minutes later, Lourdes happened to see flames coming from the grill, and went over to see what was wrong. Her deposition testimony is equivocal as to where the flames were coming from. This is partly because the deposition transcript indicates that she pointed to photographs, with no record of where she was pointing, but it also appears she was uncertain. At first, she indicated that the flames came from below the tank: "They were coming from underneath over here (indicating). From the back part underneath the tank." (Lourdes Dep. at 21). Later, after a question from the Garcias' counsel, she said they came from the top of the tank:

A: The flames were splattered all over. They were coming this way, this way, from the top, back, everywhere.
Q [Allstate's counsel]: You could see the flames coming up from underneath the grill?
A: Yes. They were coming from everywhere.
Q [Garcias' counsel: Was it from the grill or from the tank?
A: It was from the tank.
[Allstate's counsel]: Did you actually see exactly where on the tank?
A: When I saw the first fire coming up, I wasn't sure where it was coming from. So I went over to the side, and that's when I saw it was coming from the top part of the ...

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