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December 13, 1994


The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the objections of plaintiff Iowa Ham Canning, Inc. ("IHC") to the November 8, 1994, Report and Recommendation ("Report") of Magistrate Judge Edward A. Bobrick. For the following reasons, the objections are sustained and the motions of defendants Handtmann-Piereder Machinery, Ltd. ("Handtmann-Piereder") and Handtmann, Inc. ("Handtmann") (collectively "Handtmanns") for summary judgment are denied.


 The contaminants in the ham were metal shavings from the stuffers. Allegedly, the seal, bearing, shaft and meat pumps of the 153 and 187 stuffers were defective. The three separate occasions of contamination rendered a great amount of IHC's ham worthless. In fact, the United States Department of Agriculture ("USDA") ordered IHC to dispose of the contaminated meat.

 After incurring the property loss as a result of the February 19, 1991 contamination, IHC notified its insurance carrier Hartford Steam Boiler Inspection and Insurance Company ("HSB") on July 1, 1991. On July 24, 1991, HSB commenced an investigation as to the possibility of a subrogation action. As a result of the investigation, HSB reached a conclusion that there was a "possibility" of a subrogation action against Handtmann-Piereder towards the end of July 1991. *fn2"

 Nonetheless, IHC discarded the seal, bearing, shaft and meat pump involved in the 1991 and 1992 contaminations. At the time IHC discarded those parts, it did not contemplate or anticipate filing lawsuits against Handtmanns. IHC, however, retained the stuffer itself and the bearing housings from the 1991 and 1992 losses. In addition, IHC retained the 187 stuffer, which allegedly caused the 1993 contamination. None of the 187 stuffer parts were discarded.

 On August 30, 1994, Handtmanns filed motions for summary judgment based on the doctrine of spoliation of evidence. Essentially, Handtmanns seek a judgment as a matter of law with respect to the damage claims based on the 1991 and 1992 losses because IHC discarded the seal, bearing, shaft and meat pump of the 153 stuffer. The claim arising out of the 1993 loss is not an issue in Handtmanns' motion for summary judgment.


 Pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Civil Procedure 72(b), the court reviews the Report and arguments of counsel de novo. The court referred Handtmanns' motions for summary judgment to the Magistrate Judge under 28 U.S.C. § 636(b)(1)(B). The Magistrate Judge conducted a hearing and issued a twelve-page Report on November 8, 1994. The Report recommends that Handtmanns' motions should be granted "to the extent that the complaint is dismissed as to those allegations of damages occurring in February, 1991 and January, 1992." (Report at 12.) After considering the Report and arguments of counsel, the court finds IHC's objections to be meritorious; therefore, the Report is rejected and Handtmanns' motions for summary judgment are denied.

 Summary judgment is proper only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). In examining the various evidence to resolve the issues raised in the motion for summary judgment, the court must draw all reasonable inferences in favor of the party opposing the motion. Cincinnati Ins. Co. v. Flanders Elec. Motor. Serv., Inc., No. 93-3617, 1994 WL 608461 at *3 (7th Cir. Nov. 7, 1994); Associated Milk Producers, Inc. v. Meadow Gold Dairies, 27 F.3d 268, 270 (7th Cir. 1994).

 Defendants fail to present sufficient evidence to establish that sanctions of dismissal is warranted in this case. IHC does not challenge the axiom that preservation of an allegedly defective product is extremely vital to the prosecution and defense of a product liability action. See Shimanovsky v. General Motors Corp., No. 1-92-4386, 1994 WL 652689, at *4 (Ill. App. Ct. Nov. 21, 1994); Graves v. Daley, 172 Ill. App. 3d 35, 526 N.E.2d 679, 681, 122 Ill. Dec. 420 (1988). *fn3" One of the underlying reasons for the rule is that "the physical object itself in the precise condition immediately after an accident may be far more instructive and persuasive to a jury than oral or photographic descriptions." American Family Ins. Co. v. Village Pontiac GMC, Inc., 223 Ill. App. 3d 624, 585 N.E.2d 1115, 1118, 166 Ill. Dec. 93 (1992). Further, in order for a party to tender an expert opinion without having it rendered a mere speculation, the expert must have examined the actual product in its original condition. See Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992). For these reasons, a court may impose sanctions on the party who caused the relevant product unavailable. State Farm Fire & Casualty v. Frigidaire, 146 F.R.D. 160, 163 (N.D. Ill. 1992) (applying Illinois law).

 A defendant seeking sanctions is not required under Illinois law to prove that the plaintiff deliberately or intentionally destroyed, discarded, or altered the material product. Argueta v. Baltimore & Ohio R. R., 224 Ill. App. 3d 11, 586 N.E.2d 386, 393, 166 Ill. Dec. 428 (1991), appeal denied, 144 Ill. 2d 631, 591 N.E.2d 20 (1992). The defendant must, however, establish that at the time of the disposition or alteration, the plaintiff knew or should have known that the allegedly faulty product would be a material evidence in the contemplated product liability suit and that the absence of that product is prejudicial to the defendant. State Farm, 146 F.R.D. at 162. Undoubtedly, this standard ...

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