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Spoliation or NOT?
Can evidence be "decimated" and still not qualify as evidence spoliation?
During the last month, I testified in an "Evidence Spoliation" hearing. Since the jury still literally has the case, I cannot give details, but will present this information somewhat cloaked to protect identities.
A valve was being worked on by a company that regularly does that type of work in a plant in a southern state.
The work went awry, the valve ruptured, and a high pressure flammable mixture (which also contained hydrofluoric acid) spread throughout the plant. An explosion and fire ensued. After several days, the fire was extinguished and recovery of the subject failed valve began. To safely work in the hydrofluoric acid affected area of the plant, the workers had to wear thick rubber suits. Temperatures were much above 100° F and upwards of 120 to 130 F inside the personal protective suits. Workers were literally hosed down in an attempt to make their work environment more tolerable.
It is well known that when steel bolts, nuts, etc. are in a hot fire they literally weld together making disassembly EXTREMELY difficult.
A plant engineer was video taping the recovery efforts. The workmen (contractors, not plant employees) are seen in the video tape "banging", "hammering" and literally bouncing the valve on a concrete pad trying to loosen the nuts holding the valve together. Disassembly was necessary to neutralize the internal valve surfaces of the hydrofluoric acid before the valve was removed from the plant for failure analysis. No one had informed the
contractor's workers that the valve had a fracture surface that would be the subject of a subsequent examination. I frankly have never seen a more totally deformed fracture surface. The "tuliped" fracture surface is shown in Photograph A.
Photograph A:
Deformed (tuliped) fracture
surface denoted with
white arrows.
Fortunately, the other fracture surface was perfectly and completely preserved. I analyzed the failure and found the "preserved" fracture surface contained
a fracture topography that could only be explained by the actions of the valve repair workers. The fracture surface was 100% tensile overload (more load applied than the metal could withstand).
The opposing expert claimed that if he had the other side he "might" have been able to find evidence not contained on the preserved fracture. I maintained that it is a fundamental principle of fracture that one side of a fracture is the mate or mirror image of the other side. It was pointed out to the judge that in many instances, only one side of the fracture is available and that one side is completely sufficient to analyze the failure. Numerous examples from the "Metals Handbook" were presented where only one side of a fracture was available, i.e., wheel studs, aircraft engine propellers, locomotive wheels, oilfield drill pipe, casing, etc. In my own practice about 13% of the time, I only have one side of the failure to analyze.
The judge ruled that although one side of the fracture had been "decimated", making detailed microscopic examination impossible, that no spoliation had occurred.
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Dr. R. Craig Jerner, Ph.D., PE specializes in accident investigation and metallurgical
failure analysis, with over 30 years experience as a
metallurgical consultant and accident
investigator. He has testified as a metallurgical
expert in over 250 depositions and more than 70 court appearances. If you or someone you know should need the services of Dr. Jerner and J.E.I. Metallurgical, please visit our web site at the buttons below, or e-mail Dr. Jerner --- 