                                                                         FILED
                                                                     OCTOBER 1,2015
                                                                 I n the Office of the Clerk of Court
                                                               W A State Court of Appeals, Division III

            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

RAYMOND COOK and ARLENE                       )
COOK, husband and wife and the marital        )        No. 32000-6-111
community comprised thereof,                  )
                                              )
                     Appellants,              )
                                              )
       v.                                     )        PUBLISHED OPINION
                                              )
TARBERT LOGGING, INC., a                      )
Washington Corporation, and SHANE             )
BEAN and JANE DOE BEAN, husband               )
and wife and the marital community            )
comprised thereof, and STEVENS                )
COUNTY, a local governmental entity,          )
                                              )
                     Respondents.             )

       SIDDOWAY, C.J. -    The jury trial of Raymond and Arlene Cook's claims arising

out of a collision between a pickup truck driven by Mr. Cook and a logging truck driven

by an employee of Tarbert Logging Inc. resulted in a defense verdict in favor of Tarbert,

its driver, and Stevens County. The Cooks appeal, arguing that the trial court abused its

discretion in making erroneous spoliation-based rulings that excluded the testimony of

their expert on the key issue of the drivers' speeds at the time of impact, allowed defense

experts to testify to the drivers' speeds using the Cooks' expert's photographs and

measurements, and allowed the defense to invite a negative inference from the fact that

the Cooks engaged an expert whom they did not call to testify.
No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



       The trial court erred in concluding that Washington has recognized a general duty

to preserve evidence; it has not. For that reason, and because only intentional spoliation

logically supports an adverse inference, the trial court erred when it ruled in limine that it

would admit evidence and allow defense argument in support of such an inference. The

trial court also abused its discretion in ruling in limine that the defense could present

evidence to support argument of what was tantamount to a missing witness inference

from the Cooks' failure to call their expert witness on speed to testify at trial.

       The error is reversible except as to Stevens County, which was sued for its

negligent plowing of the road. Since the jury's special verdict found that the county was

not negligent, any error in the evidence and argument on speed-which bore, in the

county's case, only on comparative fault-was harmless as to the county.

       We affirm the judgment in favor of Stevens County, reverse the judgment in favor

of Tarbert and its driver, and remand for a new trial.

                       FACTS AND PROCEDURAL BACKGROUND

       For the judges on this panel and many participants in the trial below, this case

brought to our attention for the first time the existence of event data recorders in modem

cars and trucks that not only continually monitor data about a vehicle's operation but also

can retain data about its operation in the seconds before a crash. In this case, the event

data recorder was an airbag control monitor CACM) in Raymond Cook's 2006 GMC

Sierra pickup truck.

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       As explained by the experts who testified at trial, the airbag icon that lights up on

the dashboard during a vehicle's operation indicates that the ACM is working, streaming

data about the key aspects of the vehicle's operation that inform whether to trigger the

explosion that will deploy airbags. Among operating information continually being

streamed through an ACM are the vehicle's speed, the engine's speed, the percent

throttle, the brake switch circuit status, and the driver's seat belt status. An ACM is

programmed with an algorithm that determines within milliseconds whether the operating

information collectively signals a crash, in which case airbags will be deployed. After

deployment, the ACM retains information that was streaming through it for up to five

seconds "before algorithm enable." Clerk's Papers (CP) at 14. If the vehicle is one for

which software and hardware for reading retained data is available to the public, then

according to experts in the trial below, the data is "very useful" in determining precrash

speed. Report of Proceedings (RP) (Aug. 27, 2013) at 1207. 1

       In this case, Mr. Cook's pickup truck collided with a Tarbert logging truck being

driven by Shane Bean on a primitive road 2 in Stevens County one morning in February




      1 We note that there is overlapping numbering in some of the reports of
proceedings.
       2 "Primitive roads" are roads that are not classified as part of a county primary
road system, have a gravel or earth driving surface, and have an average daily traffic of
100 or fewer vehicles. RCW 36.75.300. By statute, counties are relieved of certain road
design, signage, and maintenance standards with respect to primitive roads. Id.

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2009. It is undisputed that the accident occurred on a particularly narrow stretch of the

road on a blind curve, and that packed snow and ice on the road was very slippery that

morning.

       Mr. Cook was badly injured in the accident, and his pickup truck was totaled. He

retained a lawyer to explore the possibility of legal action. By March 17,2009, American

Forest Casualty Insurance Company, which insured Tarbert, had received a letter from

Mr. Cook's lawyer F. Day Ie Andersen providing notice of a claim. A claims

administrator for the insurer acknowledged the claim on March 18 and stated that a

liability investigation was underway.

       At the time, the GMC truck-which was registered in the name of Mr. Cook's

sister, Gina Cook, and was owned by her limited liability company-was being stored in

a shed belonging to Mr. Cook's son, Joshua. 3 Mr. Andersen told Joshua to maintain the

vehicle as it was and to keep it indoors until further notice. On March 25, 2009, Mr.

Cook and Mr. Andersen traveled to the shed with Dr. Richard Gill, a mechanical engineer

and human factors specialist retained on Mr. Cook's behalf by Mr. Andersen, to inspect

the truck. Dr. Gill took crush measurements and photographs.

       Dr. Gill did not remove the ACM from the truck or download any data from it.

When later deposed, he testified that he was familiar with event data recorders such as the


       We refer to Joshua by his first name to avoid confusion with his father. We
       3
mean no disrespect.

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ACM and with "the improvements that have been made over time with them[,] ... the

variability in terms of the types of data that's recorded[, and] ... the limitations of them,"

but that he was not qualified to download their data. CP at 284. He testified that he had

become more familiar with them between 2009 and the 2012 date of his deposition, but

that he had worked on cases even before March 2009 in which one of the experts had

downloaded data from an event data recorder. He testified that while he was not

qualified to download such data, he "certainly considered it both pro and con" when the

data had been downloaded by someone else. Id.

       In February 2010, Mr. Andersen served Stevens County with the statutorily

required presuit notice that the Cooks asserted a tort claim against the county for

negligent plowing of the road. See RCW 4.96.020. The Cooks contended that the county

had failed to plow a swath through the snow and ice that was as wide as the roadway,

leaving the plowed roadbed too narrow for the traffic for which the road was designed.

       The county did not acknowledge liability in response to the statutory notice, and in

December 2010 Mr. Cook filed his complaint for negligence against Tarbert, Mr. Bean,

and Stevens County. 4




       4  Tarbert's counsel represented Mr. Bean at trial. For simplicity, we will refer to
Tarbert and Mr. Bean collectively as "Tarbert" in discussing their participation in the
litigation.

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        Stevens County initially defended with a motion for summary judgment, evidently

based on the "primitive" status of the road on which the accident occurred. After that

motion was denied, the county asked the Cooks for the opportunity to examine the GMC

pickup truck, through electronic mail sent by the county's lawyer in February 2012.

        By the time of the county's request, the pickup truck had been "parted out" and

sold. In a deposition later taken of Joshua, he testified that he could not recall precisely

when he sought permission from Mr. Andersen to get rid of the truck. He provided two

inconsistent answers that were never clarified. Based on those inconsistent answers, his

parting out and selling of the truck took place either during a one-year period that began

in the winter of 2009-1 0 or during a one-year period that began in August or September

2010.

        Dr. Gill prepared a written report in September 2012 that included his opinion that

Mr. Cook was traveling at a slower and safer speed than Mr. Bean at the time of the

accident. Accusing the Cooks of spoliation, Stevens County filed a motion asking the

trial court to preclude Dr. Gill from offering opinion testimony about Mr. Cook's speed

before and at the time of the collision and to instruct the jury that the parting out of the

pickup mandated an inference that the evidence, had it been preserved, would have been

unfavorable to the Cooks' position. Tarbert joined in Stevens County's motion.

        In support of the spoliation motion, Stevens County and Tarbert contended that

Mr. Cook's lawyer gave Joshua permission to part out the truck and sell it for no good

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Cook v. Tarbert Logging, Inc. et al. 



reason, aware that the defendants would probably want to examine it. They also

contended that Dr. Gill's awareness of the ACM as a source of valuable information on

speed should be imputed to the Cooks and their lawyer.

       The Cooks argued that they retained the pickup for years, that neither defendant

sent them a litigation hold or otherwise indicated interest in examining the pickup during

the years it was retained, and that the defendants had not identified any duty on the part

of Mr. Cook to retain it. They also argued that the ACM was not as critical as claimed by

the defendants, since one defense expert had already prepared a report expressing

defense-favorable opinions on the drivers' speeds based on other available evidence. 5

       The court concluded that the Cooks had a duty to retain the pickup truck,

explaining in its oral ruling that the duty arose because Dr. Gill had the opportunity to

examine the truck and   ~~[i]t   would likely be a quick jump to recognize that on down the

line at some point the ... defense might want to have the opportunity to have an

examination independently conducted of the vehicle and more specifically as to the

[ACM]." RP (Feb. 8 & Aug. 19,2013) at 33-34. It found no duty on the part of the


       5 Mr.  Cook also argued below and argues on appeal that the truck belonged to his
sister's company, not to him. As pointed out by the defense, Mr. Cook was the president
of his sister's company, the truck was assigned to him, and he described it as "my truck."
RP (Aug. 26, 2013) at 971-72. Even more importantly, after the collision, family
members relied in all of their postaccident dealings with the totaled truck on Mr.
Andersen's directions. Substantial evidence supported the trial court's implicit
conclusion that the Cooks and their lawyer had sufficient control over the totaled truck to
bear responsibility for the disposal. We do not consider this argument further.

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No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



defendants "to demand access instantly to the item." RP (Feb. 8 & Aug. 19,2013) at 34.

While the court stated it did not find any purposeful intentional destruction, "common

sense should have caused the parties on the plaintiff side to say, this item needs to be

preserved and there needs to be some notice to the other side." Id. It granted the

defendants' motion to exclude Dr. Gill's opinions on the drivers' speed at the time of the

collision. Opinions Dr. Gill had expressed on other matters were not excluded.

       The findings, conclusions, and order later entered by the court included its

determination that "[p]laintiffs did not act in bad faith or with deliberate intention to

destroy the evidence" and its conclusion that they were nonetheless culpable for violating

a duty to preserve the evidence because they were "aware of its importance and

relevance." CP at 123. The court reserved ruling on whether it would give a spoliation

instruction to the jury.

       Among matters considered at a pretrial hearing on August 19,2013, and revisited

during trial were two spoliation instructions proposed by the defense and a request by

Tarbert and Stevens County that they be allowed to question Mr. Cook not only about

disposing of the truck but also about retaining Dr. Gill and Dr. Gill's examination of the

truck. Mr. Cook had cross moved for an order in limine precluding any mention of Dr.

Gill, whom the Cooks decided not to call as a witness.




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No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.


       On August 19, Mr. Andersen explained his concern about the defendants' request

to tell the jury that an expert (who would not appear at trial) had been hired by the Cooks

and was the only expert who had examined the truck before it was parted out:

       [M]y biggest problem is, Your Honor, what basically defendants are trying
       to do is create an inference that Dr. Gill's opinions were bad, because we
       can't address the nature of his opinions. I can't say: Well, he was going to
       say that Tarbert and Stevens County were at fault, because those opinions
       have been excluded. So then to sit there and say plaintiffs had an expert,
       where is he, where' s the truck? ...
               There's going to be an inference that he created a negative opinion
       about the case. I don it know how you remove that by saying this
       gentleman examined the truck, the truck was destroyed, and now Mr. Gill is
       not here to testify about it. Even if they don't say Mr. Gill is not here to
       testify about it, the jury is going to recognize that this person who examined
       the truck never testified. So basically it's highlighting the testimony of a
       witness who wasn't called, whose opinions have been excluded under order
       of limine, and who I'm prohibited from addressing whatsoever because of
       the order in limine.

RP (Feb. 8 & Aug. 19,2013) at 68. The trial court reserved ruling on whether the

defense would be allowed to question Mr. Cook about his engagement of an expert,

stating that it would be revisited before the conclusion of Mr. Cook's testimony.

       That issue and the issue of whether a spoliation instruction would be given were

revisited on August 22, at which point Mr. Andersen proposed what he "hop[ed would]

be a resolution" by stating he would not object to the defense examining Mr. Cook about

the fact that the truck was parted out before the lawsuit was filed and before the defense

had an opportunity to inspect it. RP (Aug. 22, 2013) at 762. He conceded the jurors



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Cook v. Tarbert Logging, Inc. et al. 



might draw an adverse inference on their own. Mr. Andersen's "main difficulty," in the

parlance of the court, was with the giving of a spoliation instruction and any mention of

Dr. Gill. RP (Aug. 22, 2013) at 763. 6

       The trial court gave extensive consideration to whether to instruct on spoliation

and ultimately decided not to. It concluding that it was sufficient that Dr. Gill's

testimony was excluded and the defense would be free to elicit testimony from parties

concerning the existence of the ACM, the authorization of its disposal by agents ofthe

plaintiff, and the fact that the defense never had the chance to examine it. Mr. Andersen

acknowledged this to be a "fair resolution." RP (Aug. 22, 2013) at 773.

       But then, the following exchange occurred:

                [STEVENS COUNTY'S LAWYER]: Point of clarification, Your
       Honor.
              THE COURT: Yes, sir.
              [STEVENS COUNTY'S LAWYER]: May we establish that an
       expert hired by the plaintiff examined the vehicle before the vehicle was -­
              THE COURT: Yes.
              [STEVENS COUNTY'S LAWYER]: -- parted off? Thank you.
              THE COURT: Any other questions on that, Counsel?
              MR. ANDERSEN: I have a question, Your Honor. If, in fact, they
       can establish it, then I would think the plaintiff would have the right to


       6 Stevens County argues that with this proposal, Mr. Andersen created invited
error. Br. ofResp't Stevens County at 28. But as discussed in the analysis section
below, the Cooks' assignments of error are to the threshold finding of spoliation and to
the court's in limine rulings permitting evidence and argument suggesting what amounted
to a "missing witness" inference. The Cooks preserved error in the spoliation finding,
and it was not invited error for Mr. Andersen to try to persuade the court to impose what
he considered to be the least harmful consequences to his clients.

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No. 32000-6-II1 

Cook v. Tarbert Logging, Inc. et al. 



       indicate to the jury that the expert's opinions were not negative towards Mr.
       Cook. Because the -­

               ... [b]ecause if the parties are allowed to say the plaintiff hired an
       expert to inspect this vehicle, the jury is going to say, well, where is this
       expert[?] So, there's clearly going to be some negative inference derived
       from the plaintiff to indicate that the expert is going to have a negative
       opinion against the plaintiff.
              THE COURT: I would disagree with that. I've already made the
       ruling on Mr. Gill, and there won't be any reference to Mr. Gill apart from
       the fact that there was an expert who evaluated the vehicle at the instance of
       the plaintiff.

RP (Aug. 22, 2013) at 773-74.

       Relying on the trial court's ruling, both defense lawyers established through cross-

examination of Mr. Cook that an expert for the Cooks had examined the truck and taken

measurements on the Cooks' behalf at a time when they knew they were going to bring a

lawsuit. Anticipating the examination, Mr. Andersen even touched in direct examination

on the fact that "someone" had looked at the truck after the collision and had taken

measurements. RP (Aug. 26, 2013) at 1023. Mr. Cook's testimony established that a

couple of years after the accident, Joshua had sold the truck by parting it out.

       In closing argument, Tarbert's lawyer argued:

       Also, we learned, going chronologically, something else happened in
       March of 2009. Josh Cook was storing this truck and an expert came out
       and took photos and measurements, an expert who didn't download the data
       from that airbag control module that would have told you exactly how fast
       Ray Cook was going in the five seconds leading up to the impact. The
       lawsuit was later filed in December of 20 10, and the Cook family disposed
       of the pickup, parted it out, sold it off, before either of the defense experts
       were able to access it and download that airbag control module data.

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No. 32000-6-111
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RP (Aug. 28,2013) at 1308.

       In his closing argument, Stevens County's lawyer mentioned the testimony of the

defense experts that Mr. Cook had been driving too fast, and then told the jury:

               And contrary to that, plaintiff hasn't called an expert to tell you what
       caused this accident. Plaintiffs called Mr. Keep to tell you how the road
       should be plowed, but there's not one bit of expert testimony from anyone
       in this trial to suggest that the accident was caused by anything other than
       Mr. Cook's speed.
              Now, you have heard some testimony about an expert witness, and
       Ms. Bloomfield went over this and I'm not going to belabor the point, but
       in March of 2009 you heard that Mr. Cook had an expert examine his
       vehicle. You heard that Mr. Cook, in March of2009, knowing that he was
       going to bring a lawsuit, had the expert photograph his vehicle and take
       measurements of the crush depth of his vehicle. And you recall I asked Mr.
       Hunter, I said, Why would an expert take measurements of the crush depth?
       And he told you that's how experts determine speed upon impact.
               You also heard that Mr. Cook's vehicle was equipped with an airbag
       control module when the expert reviewed or looked at that truck back in
       March of2009. You heard that that airbag control module would have told
       us exactly how fast Mr. Cook was going the five seconds before this
       collision and at the point of impact. But unfortunately, as you also heard,
       that truck, after plaintiff's expert examined it, was disposed of. It was
       parted off and sold, so the defense experts didn't have the opportunity to
       look at that airbag control module. When you go to the jury room to
       deliberate, you can take whatever inference you want from Mr. Cook's
       actions in having an expert examine that vehicle and then sell that vehicle.

RP (Aug. 28, 2013) at 1331-32.

       The jury returned a defense verdict. The Cooks appeal.




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Cook v. Tarbert Logging, Inc. et al. 



                                         ANALYSIS

       The Cooks contend that the trial court erred or abused its discretion at three stages

in addressing the spoliation issue. They argue first, that the court abused its discretion

when it assumed, in error, that the Cooks had a duty to preserve the evidence and found

spoliation as a result; second, that it abused its discretion by allowing the defendants to

present evidence about a nontestifying witness, creating an adverse implication from his

absence; and third, that it abused its discretion and compounded the harm when it refused

to allow the Cooks to rebut the false inference by demonstrating that their expert's

opinions would have supported their claim. Both defendants deny any error or abuse of

discretion but argue that if one occurred, it was harmless.

       Whether a duty to preserve evidence exists is a question of law . We review

questions of law de novo. Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 880,

73 P.3d 369 (2003). We review a trial court's decision imposing sanctions for spoliation

for abuse of discretion. Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892,898, 138

P3d 654 (2006). A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or untenable reasons. Teter v. Deck, 174

Wn.2d 207, 215,274 P.3d 336 (2012). Untenable reasons include errors oflaw. Estate

o/Treadwell v. Wright, 115 Wn. App. 238,251,61 P.3d 1214 (2003).

       We first address the Cooks' arguments in the order stated, and finding error, we

then address whether it was harmless.

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Cook v. Tarbert Logging, Inc. et al. 



                          I. The spoliation finding and sanctions

                      Did the Cooks commit sanctionable spoliation?

                 Washington cases have not recognized a general duty to
                                  preserve evidence

       In Henderson v. Tyrrell, this court cited the definition of spoliation as '" [t]he

intentional destruction of evidence'" but at the same time observed that jurisdictions

modernly treat the term as "encompass[ing] a broad range of acts." 80 Wn. App. 592,

605,910 P.2d 522 (1996) (quoting BLACK'S LA W DICTIONARY 1401 (6th ed. 1990)).

Adopting an approach for determining when spoliation is sanctionable from an Alaska

case, Sweet v. Sisters ofProvidence in Washington, 895 P.2d 484 (Alaska 1995),1

Henderson held that the "severity of a particular act (in terms of the relevance or

importance of the missing evidence or of the culpability of the actor) determines the

appropriate remedy." 80 Wn. App. at 605. Its subsequent discussion of culpability

illuminates the "range of acts" the court recognized as spoliation.



       7 Henderson adopted only Sweet's approach to determining a sanction; it explicitly
refused to reach Sweet's identification of a rebuttable presumption as an appropriate
remedy. 80 Wn. App. at 612 n.8. Washington courts have preferred instructing a jury on
a permissible inference rather than a presumption in the analogous context of missing
witnesses. Wright v. Safeway Stores, Inc., 7 Wn.2d 341, 345-46, 109 P.2d 542 (1941);
State v. Davis, 73 Wn.2d 271,281,438 P.2d 185 (1968), overruled on other grounds by
State v. Abdulle, 174 Wn.2d 411,275 P.3d 1113 (2012). The issue is not presented in
this appeal, but we note our disagreement with the suggestion in Marshall v. Bally's
Pacwest, Inc., 94 Wn. App. 372, 381, 972 P.2d 475 (1999) that Henderson approved a
rebuttable presumption as a remedy for spoliation.

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       The culpable conduct relied on in seeking a sanction must be connected to the

party against whom a sanction is sought. Id. at 606. In Henderson, the court applied the

"connection" requirement as meaning that the act of destruction was by someone over

whom the potentially sanctioned party had some control. And in Henderson, the court

charged the plaintiff with his lawyer's knowledge that the defense had requested that

evidence be preserved. Id. at 611.

       In weighing the importance of the destroyed evidence, the fact that the culpable

party itself investigated the evidence is relevant but not determinative. See id. at 607-09.

Whether destruction of the evidence gave the culpable party an investigative advantage is

a consideration; conversely, the fact that neither party presents the testimony of an expert

who examined the evidence before its destruction diminishes its importance. Id. at 607­

08. In Henderson, in which a car involved in a one-car accident was destroyed, the

"many photographs available to the experts" supported the court's decision that no

sanction was appropriate. Id. at 609.

       In considering culpability, courts examine whether the party acted in bad faith or

with conscious disregard of the importance of the evidence, or whether there was some

innocent explanation for the destruction. Id. "Another important consideration is

whether the actor violated a duty to preserve the evidence." Id. at 610. In Henderson,

the plaintiffs duty to preserve his car arose from an explicit request by the defendant to

preserve it. Even the violation of the duty to preserve was excused in Henderson,

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No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.


however, because the defendant had almost two years before the car was destroyed,

which the court characterized as "ample opportunity" to examine it. Id at 611.

       In Homeworks, Division Two of our court observed that Washington cases had so

far not held that a potential litigant owes a general duty to preserve evidence but it

allowed that the appellants in the case "may be correct that a party has [such a duty] on

the eve of litigation." 133 Wn. App. at 901. In two relatively recent cases, our court has

found that no duty to preserve evidence arises where a person has been injured by an

arguably negligent act and a lawsuit is a possibility. In Ripley v. Lanzer, 152 Wn. App.

296, 215 P .3d 1020 (2009), the trial court refused to impose a sanction against medical

providers who threw away a defective scalpel handle, knowing that it had been the cause

of a broken blade that lodged in a patient's knee. Our court concluded that the evidence

might not have been important and "we see no bad faith or other reason to show that this

act was intended to destroy important evidence." Id at 326. In Tavai v. Walmart Stores,

Inc., 176 Wn. App. 122, l36, 307 P.3d 811 (2013), in which the plaintiff sought an

adverse inference instruction against a retailer that destroyed surveillance video that

might have recorded when and how water came to be on the floor where she fell, our

court "decline[d] to require store premises to retain all video anytime someone slips and

falls and files an accident report."

       Stevens County suggests that Henderson recognized a general duty to preserve

evidence by "quot[ing] with approval" the discussion of such a duty in Fire Insurance

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No. 32000-6-111 

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Exchange v. Zenith Radio Corp., lO3 Nev. 648, 747 P.2d 911 (1987). Br.ofResp't

Stevens County at 21. But Henderson did not quote the language in discussing the

existence ofa general duty. Rather, in a footnote in which the court explained why an

explicit request to preserve evidence can give rise to a duty even if made before a lawsuit

is filed, Henderson cites Zenith Radio as supporting the proposition that "a party's

disregard of an opposing party's informal request could be viewed as an indication of bad

faith." 80 Wn. App. at 611 n.7. The language that Stevens County characterizes

Henderson as "approving" is merely parenthetically included as support for this different

proposition.

       Read as a whole, Henderson's discussion of culpability as a factor implicitly holds

that a party's negligent failure to preserve evidence relevant to foreseeable litigation is

not sanctionable spoliation. The discussion of the defendant's culpability begins with the

observation that many courts examine "whether the party acted in bad faith or conscious

disregard of the importance of the evidence." Id. at 609. Negligence is not mentioned.

       Henderson then turns to a discussion of violation of a duty as a form of

culpability, but the examples it gives are all of legal duties unrelated to foreseeable

litigation. As observed by the court in Homeworks, "Significantly, in Henderson, the

court did not suggest that potential plaintiffs have a general duty to preserve all evidence.

Instead, the Henderson court looked to other sources for duty such as the duty of a




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No. 32000-6-111 

Cook v. Tarbert Logging, Inc. et al. 



partner to preserve records or the duty of a medical provider to save medical

information." 133 Wn. App. at 901.

       Having identified those sorts of sources for duty, Henderson states, "Here, the

Hendersons have not established ... any similar duty to retain the 1972 Camaro." 80

Wn. App. at 610. There is no way to read that statement other than as the rejection of a

general duty to preserve evidence. The court's consideration of spoliation continued in

Henderson only because the Hendersons could point to their lawyer's letter to the

defendant's lawyer explicitly asking that the car be preserved until further notice. The

defense did not make a request that evidence be preserved here.

           While defendants cite federal cases that recognize a general duty to
                   preserve evidence, federal law does not help them

       "Washington case law on spoliation is sparse." Homeworks, 133 Wn. App. at 898.

In outlining a framework for identifying spoliation and framing a sanction, Henderson

looked to contemporary cases from other jurisdictions, evidence treatises, and law review

articles. In the 19 years since Henderson was decided, the federal courts and some state

courts have recognized a general duty to preserve important evidence. Both Tarbert and

Stevens County cite to federal decisions postdating Henderson as additional support for

the court's findings and sanctions here, suggesting that we should follow the federal

trend. Br. of Resp't Tarbert at 26 (citing Unigard Sec. Ins. Co. v. Lakewood Eng'g &

Mfg. Corp., 982 F.2d 363, 368-70 (9th Cir. 1992)); Br. of Resp't Stevens County at 21


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No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



(citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003)). The federal

cases do not support the trial court's rulings, however--or at least do not support its in

limine ruling permitting the defendants to present evidence and argument of an adverse

inference.

       In Zubulake, the case cited by Stevens County, the court held that the party

seeking instruction on an adverse inference for merely negligent spoliation must show

that the destroyed evidence was "relevant" in a heightened sense: it must adduce

sufficient evidence that a reasonable trier of fact could infer that the evidence would

have-not might have-been helpful to its case. As the federal court explained:

       [I]n order to receive an adverse inference instruction, Zubulake must
       demonstrate not only that UBS destroyed relevant evidence as that term is
       ordinarily understood, but also that the destroyed evidence would have
       been favorable to her. This corroboration requirement is even more
       necessary where the destruction was merely negligent, since in those cases
       it cannot be inferred from the conduct of the spoliator that the evidence
       would even have been harmful to him. This is equally true in cases of gross
       negligence or recklessness; only in the case ofwillful spoliation is the
       spoliator's mental culpability itself evidence ofthe relevance ofthe
       documents destroyed.

220 F.R.D. at 221 (some emphasis added) (footnotes omitted) (quoting Turner v. Hudson

Transit Lines, Inc., 142 F.R.D. 68, 77 (S.D.N.Y. 1991)); accord Orbit One Commc'ns,

Inc. v. Numerex Corp., 271 F.R.D. 429, 439-40 (S.D.N.Y. 2010); cf Reinsdorfv.

Skechers U.S.A., Inc., 296 F.R.D. 604, 627 (C.D. Cal. 2013) (while the Ninth Circuit

Court of Appeals has not clearly articulated the degree of culpability necessary to warrant


                                             19 

No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



an adverse inference instruction, courts in the circuit have found willfulness or gross

negligence to suffice),8

       In addition to recognizing that negligence does not logically support an adverse

inference, the court observed in Zubulake that "[i]n practice, an adverse inference

instruction often ends litigation-it is too difficult a hurdle for the spoliator to overcome.

, , . When a jury is instructed that it may "infer that the party who destroyed potentially

relevant evidence did so out of a realization that the [evidence was] unfavorable,' the

party suffering this instruction will be hard-pressed to prevail on the merits." 220 F.R.D.

at 219-20 (third alteration in original) (internal quotation marks omitted) (quoting Linnen




       8In reexamining its approach to spoliation in 2014, the Texas Supreme Court
observed that its position that an adverse inference sanction is available only for
intentional, bad faith spoliation "aligns with a majority of the federal courts of appeals."
Brookshire Bros. v. Aldridge, 438 S.W.3d 9,24 (Tex, 2014) (citing cases). As a further
reason weighing against giving such an instruction, the Texas Supreme Court expressed
concern about distracting jurors from the historical evidence:

       [T]he imposition of a severe spoliation sanction, such as a spoliation jury
       instruction, can shift the focus of the case from the merits of the lawsuit to
       the improper conduct that was allegedly committed by one of the parties
       during the course of the litigation process. The problem is magnified when
       evidence regarding the spoliating conduct is presented to a jury. Like the
       spoliating conduct itself, this shift can unfairly skew a jury verdict,
       resulting in a judgment that is based not on the facts of the case, but on the
       conduct of the parties during or in anticipation of litigation.

Id. at l3-14.



                                             20
No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.


v. A.H Robins Co., No. 97-2307,1999 WL 462015, at *11 (Mass. Super. Ct. June 16,

1999) ( court order)).

        The most recent federal development is recently approved amendments to the

Federal Rules of Civil Procedure relating to electronically stored information that permit

a court to give an adverse inference instruction only if it finds intentional destruction and

prejudice. Proposed Amendments to the Federal Rules of Civil Procedure, 305 F.R.D.

457,485-86 (2015).9 Amended Federal Rule of Civil Procedure 37(e), which will take

effect on December 1, 2015, absent legislation to reject, modifY, or defer the rules, reads

in its entirety:

       Failure to Preserve Electronically Stored Information. If electronically
       stored information that should have been preserved in the anticipation or
       conduct of litigation is lost because a party failed to take reasonable steps to
       preserve it, and it cannot be restored or replaced through additional
       discovery, the court:
        (1) 	      upon finding prejudice to another party from loss of the information,
                   may order measures no greater than necessary to cure the prejudice;
                   or
        (2) 	      only upon finding that the party acted with the intent to deprive
                   another party of the information's use in the litigation may:
                   (A) 	 presume that the lost information was unfavorable to the
                         party;
                   (B) 	 instruct the jury that it mayor must presume the information
                          was unfavorable to the party; or
                   (C) 	 dismiss the action or enter a default judgment.


       9 Also available at
http://www.supremecourt.gov/orders/courtorders/frcvI5(updateL1823.pdf.

                                                 21
No. 32000-6-111 

Cook v. Tarbert Logging, Inc. et al. 




       Comments to the 2015 proposed amendments, approved by the Judicial

Conference of the United States at its September 2014 session, recognize that "[m]any

court decisions hold that potential litigants have a duty to preserve relevant information

when litigation is reasonably foreseeable" and base regulation of sanctions on the

existence of a federal common law duty. Proposed Amendments to the Federal Rules of

Civil Procedure, Rule 37 committee note, 305 F.R.D. at 570. \0 The comments explain

that in creating a uniform standard for imposing severe sanctions when addressing a

failure to preserve electronically stored information, the intent was to reject federal

decisions that, under some circumstances, authorize the giving of adverse inference

instructions based on a finding of negligence or gross negligence. Id. at 575-76. The

comments offer the following explanation:

               Adverse-inference instructions were developed on the premise that a
       party's intentional loss or destruction of evidence to prevent its use in
       litigation gives rise to a reasonable inference that the evidence was
       unfavorable to the party responsible for loss or destruction of the evidence.
       Negligent or even grossly negligent behavior does not logically support that
       inference. Information lost through negligence may have been favorable to
       either party, including the party that lost it, and inferring that it was
       unfavorable to that party may tip the balance at trial in ways the lost
       information never would have. The better rule for the negligent or grossly
       negligent loss of electronically stored information is to preserve a broad
       range of measures to cure prejudice caused by its loss, but to limit the most
       severe measures to instances of intentional loss or destruction.


       10 Also available at http://www.uscourts.gov/rules-policies/archives/committee­
reports/reports-judicial-conference-september-20 14 (last visited Sept. 4, 2015).

                                             22 

No. 32000-6-II1 

Cook v. Tarbert Logging, Inc. et al. 




Id. at 576.

       Federal cases view a federal common law duty to preserve evidence as well

established.   See~   e.g., Pension Comm. of Univ. ofMontreal Pension Plan v. Bane ofAm.

Sec., LLC, 685 F. Supp. 2d 456,466 (S.D.N.Y. 2010) ("The common law duty to

preserve evidence relevant to litigation is well recognized.") (abrogated on other grounds

by Chin v. Port Auth. ofN Y., 685 F.3d 135 (2d Cir. 2012»; Joshua M. Koppel, Federal

Common Law and the Courts' Regulation ofPre-Litigation Preservation, 1 STAN. J. OF

COMPLEX LlTIG. 101 (2012) (identifying sources of authority for a federal common law

duty to preserve evidence); Proposed Amendments to the Federal Rules of Civil

Procedure, Rule 37 committee note, 305 F.R.D. at 569-78.

       There is no such uniformity in the states' views of their common law. Most states

have refused to identify a tort duty to preserve evidence whose breach will support an

action for damages. See, e.g., Benjamin 1. Vernia, Annotation, Negligent Spoliation of

Evidence, Interfering with Prospective Civil Action, as Actionable, 101 A.L.R. 5th 61

(collecting cases); id. §2[a] ("The majority ofjurisdictions considering the actionability

of negligent spoliation ... have not recognized the tort, either for parties or nonparties to

the underlying dispute." (citations omitted»; Metlife Auto & Home v. Joe Basil

Chevrolet, Inc., 303 A.D.2d 30, 753 N.Y.S.2d 272,276 (2002) ("The great weight of

authority runs against recognizing a common-law duty to preserve evidence or a cause of


                                              23 

No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



action for spoliation of evidence/impairment of claim or defense under almost any

circumstances." (collecting cases), aff'd, 1 N.Y.3d 478, 807 N.E.2d 865, 775 N.Y.S.2d

754 (2004). The federal courts have been able to avoid dealing with state substantive law

in making spoliation rulings in diversity cases by viewing such rulings as evidentiary in

nature and thereby not subject to the Erie doctrine. lI See Adkins v. Wolever, 554 F.3d

650,652 (6th Cir. 2009); Sherman v. Rinchem Co., 687 F.3d 996 (8th Cir. 2012).

       Even if we were to consider the federal cases cited by Stevens County and Tarbert

as supporting a trend toward recognizing a duty to preserve evidence, Henderson would

compel us to follow their companion holdings that the merely negligent destruction of

evidence cannot support an adverse inference. As Henderson recognized, "[U]nless there

was bad faith, there is no basis for 'the inference of consciousness of a weak cause,' "

which is "the evidentiary inference that spoliation creates." 80 Wn. App. at 609 (quoting

2 MCCORMICK ON EVIDENCE § 265, at 191 (John William Strong ed., 4th ed. 1992).

Since the Cooks' parting out of the pickup truck did not support an adverse inference, the

trial court abused its discretion when it ruled in limine that the defendants could present

evidence and argument suggesting such an inference.

       Given developments in the federal courts and elsewhere, it might be time for

Washington to reexamine whether it should recognize the existence of a general duty to



       II   Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).

                                              24
No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



preserve evidence. But a request for such reexamination should address many issues that

the parties here did not view as presented and therefore did not brief. Those issues

include (1) the source of the duty, (2) ifit is proposed to be found in the exercise of the

court's inherent authority, the admonition that "[b]ecause inherent powers are shielded

from direct democratic controls, they must be exercised with restraint and discretion,"

Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S. Ct. 2455, 65 L. Ed. 2d 488

(1980), and (3) whether it is better to leave the recognition of any such duty to rule

making. We will not reexamine the duty issue further where the parties have not briefed

such issues.

       In summary, Henderson did not recognize a general duty to preserve evidence.

We need not consider whether federal authority offered by Tarbert and Stevens County is

persuasive support for finding a general duty to preserve evidence because the federal

cases, like Henderson, would not support the suggestion of an adverse inference absent

bad faith or, at a minimum, gross negligence. In light of the Cooks' merely negligent

actions, it is clear that the trial court abused its discretion in permitting evidence and

argument suggesting the inference.

        II Did the trial court abuse its discretion in admitting evidence about the
         plaintiffs' absent expert and denying the Cooks' request to offer rebuttal
         evidence that the expert's opinions would have supported their position?

       The Cooks' most fervent objection to the trial court's spoliation rulings was to its

decision to allow the jury to learn about their early retention of an expert on speed whom

                                              25 

No. 32000-6-111 

Cook v. Tarbert Logging, Inc. et al. 



they had not called as a witness. In briefing the parties' cross motions in limine on this

issue, Tarbert explained its reasons for wanting the jury to know about the expert:

       Defendants should be allowed to show that this was not an "innocent"
       mistake, but that Plaintiff and his lawyer hired an expert to examine the
       vehicle for purposes of assessing the speed of the collision, but the expert,
       Plaintiffs and their attorney failed to preserve this critical evidence.

                It is abundantly clear that Dr. Gill knew of the importance of the
       black box and its data .... The fact that Plaintiffs and their attorney did not
       ensure that this information was preserved is something the jury needs to be
       informed of in assessing what weight to give the presumption.

CP at 283-85.

       Stevens County's objective was reflected in its proposed spoliation instruction.

While its proposed instruction was not given, it illustrates what the county intended to

demonstrate to jurors. The instruction would have informed the jury, in part:

       Shortly after the accident, Mr. Cook hired an expert witness to examine the
       vehicle and render an opinion regarding the cause of the accident, including
       the speed involved in the collision. Mr. Cook's vehicle contained a "black
       box" which recorded the speed of Mr. Cook's vehicle at the time of the
       accident. However, the expert witness, although aware that the "black box"
       could provide the speed of Mr. Cook's vehicle immediately prior to impact,
       did not check the black box to determine the speed of Mr. Cook's vehicle.
       After Mr. Cook's expert witness examined the vehicle, and before the
       defense was allowed to examine the vehicle, Mr. Cook allowed the vehicle
       to be destroyed.

CP at 337.

       As Mr. Andersen explained in response, he was less concerned about evidence of

the pickup truck's destruction than he was about disclosure of the existence of a


                                              26 

No. 32000-6-II1
Cook v. Tarbert Logging, Inc. et al.


nontestifying expert for the plaintiff, which he argued would be "highly prejudicial at this

point, specifically given the fact that the court has made a finding of no bad faith." RP

(Aug. 22, 2013) at 764. Mr. Andersen argued that if the jury learned that an expert for

the Cooks had examined the truck, "the jury is going to say, well, where is this expert[?

T]here's clearly going to be some negative inference ... that the expert is going to have a

negative opinion against the plaintiff." RP (Aug. 22, 2013) at 773. Mr. Andersen finally

asked, after the court ruled that the evidence and argument would be permitted, whether

his client would "have the right to indicate to the jury that the expert's opinions were not

negative towards Mr. Cook." Id. Under the circumstances, as the Cooks recognized, the

evidence and argument the defense was asking court permission to advance would be

tantamount to a "missing witness" argument as to Dr. Gill. The Cooks' request to rebut

the implication was denied .

     . It is the general rule that failure to call a witness under a party's control who could

testify to material facts justifies an inference that the witness would have testified

adversely to the party. Wright, 7 Wn.2d at 346. A jury may draw such an inference only

when under all the circumstances of the case the failure to produce the witness,

unexplained, creates a suspicion that the failure to produce was a willful attempt to

withhold competent testimony. State v. Baker, 56 Wn.2d 846, 850-60, 355 P.2d 806

(1960) (citing Wright). While Tarbert and Stevens County were offering different

reasons for presenting evidence that the Cooks had retained an expert who examined the

                                              27 

No. 32000-6-III 

Cook v. Tarbert Logging, Inc. et al. 



truck, a simple fact remains: ifjurors were informed that the Cooks had retained an

expert on crash speed, the expert had performed an examination, and the Cooks did not

call him to testify, the inference that the law of evidence would expect jurors to draw is

that the expert's testimony would not have been helpful to the Cooks. Price v. United

States, 531 A.2d 984,993 (D.C. 1987) ("By pointing out a witness' absence, counsel is

plainly suggesting that if that witness were produced the resulting testimony would be

adverse to the other party."); In re Gonzalez, 409 S.C. 621, 763 S.E.2d 210,218 (2014)

(prejudice from missing witness inference arose as soon as the existence of a

nontestifying expert carne out in cross-examination; any harm when inference was argued

in closing was merely cumulative). Yet as the lawyers and the court knew, Dr. Gill's

testimony would have been favorable, not adverse, to the Cooks.

       The error was compounded when the court refused to allow the Cooks to rebut the

inference. "A permissive inference is subject to reasonable rebuttal." Stevenson v. Union

Pac. R.R., 354 F.3d 739, 750 (8th Cir. 2004); Webb v. District o/Columbia, 331 U.S.

App. D.C. 23, 146 F.3d 964,974 n.20 (1998) (observing that where one party, Webb, was

entitled to argue for an adverse inference, "the District, likewise, would be entitled to

attempt to rebut it"); cf Krieger v. McLaughlin, 50 Wn.2d 461,462,313 P.2d 361 (1957)

(where party's lawyer asked and was granted permission to rebut his adversary's missing

witness argument, he waived any error). The need to provide an opportunity to rebut the




                                             28 

No. 32000-6-II1 

Cook v. Tarbert Logging, Inc. et al. 



missing witness inference was critical here because everyone but the jurors knew that

 their natural inference from this particular missing witness would be a false one.

        We realize that allowing the rebuttal would have enabled the Cooks to present

. evidence of an opinion that had been excluded. But once the court decided that

examination about the expert would be permitted, 12 the defendants should have been

required to decide whether their interest in telling the jury about the expert's examination

was more important than having it revealed that his opinion would have supported the

Cooks. What was intolerable, and an abuse of discretion, was to allow the defendants to

present evidence of the absent expert's existence and at the same time deny the Cooks the

 opportunity to rebut a false inference, naturally to be drawn by the jury, that the expert's

opinion was unfavorable to the Cooks.

                                         Harmless error

        Both Stevens County and Tarbert contend that even if the court abused its 


discretion, the error was harmless. 


        An erroneous evidentiary ruling is not grounds for reversal absent prejudicial

 error. Error will be harmless "if the evidence is of minor significance in reference to the

overall, overwhelming evidence as a whole." State v. Bourgeois, 133 Wn.2d 389, 403,



        12 It is not clear why the court viewed evidence playing up Dr. Gill's asserted
 culpability as relevant. The court had already made a finding of no bad faith on the part
 of the Cooks that is well supported by the record.

                                              29
No. 32000-6-III
Cook v. Tarbert Logging) Inc. et al.


945 P.3d 1120 (1997). An erroneous evidentiary ruling "is not prejudicial unless, within

reasonable probabilities, the outcome of the trial would have been materially affected had

the error not occurred." State v. Tharp, 96 Wn.2d 591,599,637 P.2d 961 (1981).

       Stevens County was sued for negligently plowing too narrow a traversable

roadway. The speeds at which Mr. Cook and Mr. Bean were driving were irrelevant to

that issue. Evidence of Mr. Cook's speed was relevant only to the issue of his

comparative fault for his injury. In completing the special verdict form, jurors stopped

with their finding that Stevens County was not negligent. As to Stevens County, then, the

court's error was harmless.

       In completing the special verdict form, the jury similarly found that Tarbert was

not negligent, but in Tarbert's case, the jury's determination as to negligence necessarily

turned on what the jury concluded about the speeds at which Mr. Cook and Mr. Bean

were driving beginning with their approach to the blind curve and up to the time of the

collision. Speed was relevant to negligence in Tarbert's case. It nonetheless argues that

the fact that the Cooks had an uncalled expert who examined the vehicle "was of little

significance in the light of the evidence as a whole." Br. of Resp't Tarbert at 33. We

disagree.

       While the Cooks did not call an expert to testify to the speeds at which Mr. Cook

and Mr. Bean were driving, Mr. Cook was an experienced heavy equipment and

commercial vehicle driver whose home was on the primitive road, about a mile-and-a­

                                            30 

No. 32000-6-III
Cook v. Tarbert Logging, Inc. et al.


half from where the collision occurred. He provided a detailed account of how he was

driving leading up to the collision and how it occurred. It is likely because of Mr. Cook's

demonstrable familiarity with the road and extensive driving experience that Mr.

Andersen was willing to try the case without an expert witness to support his client's

version of events.

       The defense argued that Mr. Cook's statements to deputies contradicted the

testimony he gave at trial, but both deputies' reports were very brief and we cannot say

that the jury would not have credited Mr. Cook's testimony. One of the deputies testified

that based on the investigation, one or both of the drivers were traveling too fast for

conditions, but he was unable to determine who. Jurors were instructed that they were

the sole judges of the credibility of the witnesses and the value or weight to be given to

their testimony, and that they were not required to accept the opinions expressed by

experts. 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL

§ 1.02, at 24, § 2.1 0, at 53 (6th ed. 2012).13

       The case was well defended by Tarbert's veteran lawyer, but considering all, there

is a reasonable probability that the two negative inferences that the defendants were

permitted to invite, in error, had a material effect on the outcome of trial. Because the



       13  Although the court's instructions to the jury are not in our record, the parties'
joint trial management report indicates that the standard expert witness and closing
instructions would be given. CP at 145-49.

                                                  31
No. 32000-6-III
Cook v. Tarbert Logging. Inc. et al.


court's errors were not harmless in the case of the Cooks' claims against Tarbert and Mr.

Bean, a new trial of those claims is required. 14

       We affirm the judgment in favor of Stevens County, reverse the judgment in favor

of Tarbert Logging and its driver, and remand for a new trial.




                                                    a-zu~ IC~
                                               Siadoway, C.l.

WE CONCUR:




Brown, J.




       14Stevens County's and Tarbert's briefs request awards of attorney fees and costs.
No basis for an award of reasonable attorney fees is identified. Under RAP 14, the
prevailing parties are entitled to costs upon compliance with RAP 14.4.

                                              32
