WASHINGTON – A Joppa man cannot sue General Motors over an allegedly defective airbag because the company did not have a chance to inspect the car before it was repaired and resold, a divided federal appeals court has ruled.
A three-judge panel of the 4th U.S. Circuit Court of Appeals ruled Wednesday that Mark N. Silvestri “failed to preserve material evidence in anticipation of litigation or to notify General Motors of the availability of this evidence.”
The published opinion, by Circuit Judge Paul V. Niemeyer, upheld the dismissal of the suit by the U.S. District Court in Baltimore.
In a dissent, Judge William B. Traxler agreed that while Silvestri failed to preserve the car, dismissal of the case was an “excessive sanction.” He said he was not convinced that GM “suffered such prejudice that dismissal was the only solution.”
Silvestri’s attorney agreed Thursday, saying the district court “never considered an alternative short of dismissal.”
“Under the law, the trial court is required to consider alternative methods of leveling the playing field when a piece of evidence is lost before it can determine that the case should be dismissed,” said Marc Seldin Rosen, Silvestri’s attorney.
But GM’s attorney, Harold Bruce Dorsey, hailed the decision, saying it sets a precedent for other “spoliation” cases.
“That part of the law had never been developed before,” said Dorsey. “It is really one of the first cases that explains when you can use that kind of remedy.”
The case began on Nov. 5, 1994, in Preble, N.Y., where Silvestri was attending college. He was driving his landlady’s 1995 Chevrolet Monte Carlo when he lost control, crashed through a split-rail fence, hit a utility pole and landed in the front yard of a house. Police charged Silvestri with speeding and driving while intoxicated.
While Silvestri was in the hospital, his parents retained attorney William G. Moench, who in turn hired two accident reconstruction experts to inspect the damaged vehicle. They concluded that the failure of the Monte Carlo’s airbag to deploy added to Silvestri’s injuries, but they took almost no notes on their findings.
A short time later, Silvestri fired Moench in a dispute over billing.
Although Moench’s experts later conceded that they were hired with an eye toward suing GM, Silvestri made no effort to preserve the car or notify General Motors of the accident. Three months after the accident, the car was repaired and resold by the landlady’s insurance company.
In 1998, Silvestri sued GM. The auto manufacturer was able to track down the car in Canada, where its experts inspected the airbag sensing and diagnostic module and determined that the airbag responded properly in the 1994 crash when it did not deploy.
Another GM expert, Keith Schultz, also looked at the sketchy evidence collected by Silvestri’s experts that his injuries were caused by “the violent impact of the wood from a fence impacting the vehicle compartment,” and that Silvestri’s injuries would have been greater if the airbag had deployed.
Despite that testimony, GM argued that it could not defend itself because of the spoliation of the evidence.
Silvestri argued that he should not be held responsible for the evidence because he was not the owner of the car vehicle and because he did not hire Moench, who should be held responsible. He argued that GM was still able to defend itself although the car had not been preserved in post-accident condition.
But Niemeyer, joined by Judge H. Emory Widener, rejected that argument, noting that Silvestri had access to the car and had at least temporarily endorsed his parents’ decision to hire Moench. They agreed with the district court that the prejudice suffered by GM denied it “access to the only evidence from which it could develop its defenses adequately.”
Rosen said Silvestri will file a motion for reconsideration of the panel’s decision.