Issue: In Massachusetts, what is the appropriate remedy for the spoilation of evidence?
| Area of Law: | Litigation & Procedure |
| Keywords: | Spoliation of evidence; Remedy |
| Jurisdiction: | Massachusetts |
| Cited Cases: | None |
| Cited Statutes: | None |
| Date: | 03/01/2001 |
The appropriate remedy for spoliation seems to be a somewhat unsettled point in Massachusetts. Most rulings state that the appropriate remedy for spoliation of evidence is the exclusion of testimony about that evidence. See Kippenhan v. Chaulk Serv., Inc., 428 Mass. 124, 127, 697 N.E.2d 527, 530 (Mass. 1998); Munsinger v. Berkshire Med. Ctr., 1998 WL 1183954 at *3 (Mass. Super. 1998) (excluding the various testimony of witnesses regarding the appearance of sterile packaging); Jean v. Waban, Inc., 1999 WL 1318960 at *2 (Mass. Super. 1999) (excluding evidence regarding the condition of the toilet before or after the accident). However, one court stated that the court has discretion in determining the remedy. See Johnson v. Harvard Univ., 1996 WL 1186805 (Mass. Super. 1996) at *2. And still another hinged the appropriateness of the remedy on whether the testimony was that of an expert. See Rothenberg v. Bright Horizons Children=s Ctrs., 10 Mass.L.Rptr. 303, 1999 WL 515025 at *2 (analogizing the exclusion of expert testimony to that of a lay person and strongly directing the trial court to move in favor of a less drastic remedy in the case of a lay person=s testimony). Only one case allowed for the Aspoliation inference@ as a remedy; that is, a jury instruction permitting the jury to infer that the party who destroyed the evidence did so out of a realization that the evidence was unfavorable. See Linnen v. A.H. Robins Co., 2000 WL 16768 at *11 (Mass. Super. 1999).
That […]