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<pre>                  UNITED STATES COURT OF APPEALS <br>                      FOR THE FIRST CIRCUIT <br>                       ____________________ <br> <br>No. 97-1365 <br> <br>                     DIANA COLLAZO-SANTIAGO, <br> <br>                      Plaintiff - Appellee, <br> <br>                                v. <br> <br>                       TOYOTA MOTOR CORP., <br> <br>                      Defendant - Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Daniel R. Domnguez, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                       Cyr, Circuit Judge, <br> <br>and DiClerico, Jr., District Judge. <br> <br>                      _____________________ <br> <br>    Jay M. Smyser, with whom Antonio Gnocchi Franco was on brief <br>for appellant. <br>    Bowman and Brooke LLP, Hildy Bowbeer and Hugh F. Young, Jr. on <br>brief for Product Liability Advisory Council, amicus curiae. <br>    Jorge Miguel Suro Ballester for appellee. <br> <br>                       ____________________ <br> <br>                          July 9, 1998 <br>                                 <br>                      ____________________

  DiClerico, District Judge.  The plaintiff-appellee, Diana <br>Collazo-Santiago, received a jury verdict against the defendant- <br>  appellant, Toyota Motor Corporation, in this strict products <br>liability case.  On appeal, the defendant raises, inter alia, the <br> following arguments:  the district court applied an incorrect <br>legal standard; the plaintiff failed to establish an element of <br>  her case; and the district court erred in its denial of the <br>    defendant's motion to dismiss because of the plaintiff's <br>spoliation of evidence.  Having considered the arguments of the <br>defendant and of the amicus brief filed by the Products Liability <br>                  Advisory Council, we affirm. <br>                                 <br>Background <br>     On August 13, 1994, the plaintiff was driving a 1994 Toyota <br>Corolla when she was involved in a high speed multi-automobile <br>accident.  Struck initially from behind, her automobile was <br>propelled forward into the vehicle in front of it and the air <br>bags in her car deployed.  The plaintiff suffered abrasions to <br>her face that resulted in second degree burns.   <br>     In January 1995, the plaintiff filed this action against the <br>defendant asserting, in part, that her abrasions were caused by <br>the air bags in the automobile, that the air bags were <br>defectively designed, and that the defendant was liable under a <br>theory of strict products liability.  Confronted with an open <br>question of Puerto Rico strict products liability law, the <br>district court applied a rule of law under which a plaintiff <br>prevails in a design defect case if the plaintiff establishes <br>that the product's design proximately caused her injury and the <br>defendant fails to establish that the benefits of the design <br>outweighed its risks.   <br>     Prior to trial, the defendant asserted that the plaintiff's <br>failure to preserve the automobile for the defendant's inspection <br>was prejudicial and warranted dismissal of the plaintiff's <br>complaint.  The district court denied the motion to dismiss.    <br>     At trial, the plaintiff testified that she had been wearing her <br>seat belt at the time of the accident and that she did not come <br>into contact with the steering wheel or any other part of the <br>interior of her car.  Her dermatologist testified that her <br>injuries were second degree burns due to abrasions and that they <br>were inconsistent with a traumatic impact with a blunt object.  <br>Although the plaintiff did not supply her own expert witness on <br>air bags, she elicited testimony from the defendant's expert that <br>abrasions and burns had been associated with air bag deployment <br>in professional literature.  The defendant's expert witness also <br>testified that despite the severe injuries that may result from <br>air bag deployment, they have significantly reduced injuries and <br>fatalities from car accidents.  Moreover, he opined that there is <br>no feasible alternative design for the air bags that would reduce <br>the danger posed by their high speed deployment while maintaining <br>their efficacy. <br>     The jury returned a $30,000 verdict for the plaintiff.  On <br>appeal, the defendant contests, inter alia:  (1) the district <br>court's formulation of Puerto Rico strict products liability law <br>for design defect cases; (2) the sufficiency of the plaintiff's <br>evidence; and (3) the district court's spoliation ruling.  The <br>court discusses these claims seriatim. <br> <br>                           Discussion <br>         I.  Strict Products Liability Under Puerto Rico Law <br>     The parties do not dispute that Puerto Rico law controls the <br> issue of strict products liability for a design defect in this <br> case.  See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).  <br>The Puerto Rico legislature has yet to codify the Commonwealth's <br>law governing strict products liability.  See Rivera Santana v.Superior Packaging, Inc., No. RE-89-593, __ P.R. Offic. Trans. <br>__, slip op. at 5 n.4 (P.R. Dec. 9, 1992).  Although the Supreme <br>  Court of Puerto Rico has not explicitly pronounced the legal <br>standard governing design defect cases, the district court denied <br> the defendant's motion to certify the question to the Supreme <br>  Court of Puerto Rico, finding the path that court would take <br> reasonably clear.  See Collazo-Santiago v. Toyota Motor Corp., <br>937 F. Supp. 134, 138 (D.P.R. 1996).  The defendant alleges that <br> the district court applied an improper rule of law.  The court <br>  reviews this question de novo.  See MCI Telecomms. Corp. v. <br>    Exalon Indus., Inc., 138 F.3d 426, 428 (1st Cir. 1998). <br>     "Absent controlling state court precedent, a federal court <br>sitting in diversity may certify a state law issue to the state's <br>highest court, or undertake its prediction 'when the course [the] <br>  state courts would take is reasonably clear.'"  Vanhaaren v. <br> State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (1st Cir. 1993) <br> (quoting Porter v. Nutter, 913 F.2d 37, 41 n.4 (1st Cir. 1990) <br> (itself quoting Bi-Rite Enters., Inc. v. Bruce Miner Co., 757 <br>F.2d 440, 443 n.3 (1st Cir. 1985))).  This court agrees with the <br>district court that the likely direction of the Supreme Court of <br>               Puerto Rico is reasonably evident. <br>     Since its adoption of the doctrine of strict products liability <br>in Mendoza v. Cervecera Corona, Inc., 97 P.R.R. 487, 499 (1969), <br>the Supreme Court of Puerto Rico has embraced the formulation of <br>that doctrine first set forth by the California Supreme Court in <br> Greenman v. Yuba Power Products, Inc., 377 P.2d 897, 901 (Cal. <br>  1962).  As it has revisited the issue of Puerto Rico strict <br>  products liability law, the Supreme Court of Puerto Rico has <br>consistently relied upon California Supreme Court precedent.  In <br>  Montero Saldaa v. American Motors Corp., R-77-203, __ P.R. <br>Offic. Trans. __, slip op. (P.R. May 31, 1978), for example, the <br>Supreme Court of Puerto Rico relied upon California Supreme Court <br>   precedent in rejecting the requirement that the defect be <br>  "unreasonably dangerous to the user or consumer;" in finding <br>  strict liability applicable to both manufacturing and design <br>  defect cases; and in holding principles of comparative fault <br>applicable to strict products liability cases.  See id. at 8, 10- <br> 12.  Again, in Rivera Santana v. Superior Packaging, Inc., the <br>Supreme Court of Puerto Rico relied extensively on Greenman and <br> other California cases as it identified three types of product <br>    defects that could result in strict products liability:  <br>manufacturing defects, design defects, and defects arising from <br>inadequate warnings or instructions.  See slip op. at 8.  It then <br>  explicitly adopted Greenman's definition of a manufacturing <br>defect and provided a legal standard for inadequate warnings or <br>instructions drawn from California Supreme Court cases.  See id.at 8, 10.  Indeed, in Rivera Santana, the Supreme Court of Puerto <br>Rico acknowledged its embrace of California's doctrine of strict <br> products liability, stating the following: "Both [Mendoza and <br>  Montero Saldaa] cited with approval the strict liability in <br>     torts rule set down by the California Supreme Court in <br>                    [Greenman]."  Id. at 6.  <br>     The Supreme Court of Puerto Rico's first extended discussion of <br>strict products liability for design defects was also in Rivera <br> Santana.  In the decision, the court referred exclusively to a <br>  two-part test articulated by the California Supreme Court in <br>Barker v. Lull Engineering Co., 573 P.2d 443 (Cal. 1978).  SeeRivera Santana, slip op. at 9, 10.  Pursuant to the test, a <br>successful plaintiff in a design defect case must establish that: <br>     1) "the product failed to perform as safely as an ordinary <br>     consumer would expect when used in an intended or reasonably <br>       forseeable manner[,]" or . . . 2) "the product's design <br>      proximately caused his injury and the defendant fails to <br>     establish, in light of the relevant factors, that, on balance, <br>     the benefits of the challenged design outweigh the risk of danger <br>                      inherent in such design." <br>                                 <br>         Id. at 9 (quoting Barker, 573 P.2d at 455-56). <br>     Although in Rivera Santana the court stopped short of explicitly <br> adopting the two-part test, in Aponte-Rivera v. Sears Roebuck, <br> Inc., the Supreme Court of Puerto Rico revisited the issue of <br> strict products liability for design defects.  See Nos. RE-92- <br>436, CE-92-537, __ P.R. Offic. Trans. __, slip op. (P.R. Feb. 24, <br>1998).  In Aponte-Rivera, which was decided after oral argument <br>was heard in this case, the Supreme Court of Puerto Rico provided <br>                   that a design is defective <br>     when a product fails to perform as safely as would be expected by <br>     an ordinary user when the product is being used for its intended <br>     use or for which it could forseeably be used, or when the product <br>     design is the proximate cause of the damages and defendant fails <br>     to show that in the balance of interests the benefits of the <br>     design in question surpass the inherent risks of danger in the <br>                               design. <br>                                 <br>Id. at 10, 29 n.9 (citing Rivera).  Although the adoption of the <br>two-part test is not necessary to the outcome of Aponte-Rivera, <br> the court finds that taken together, the case law cited above <br>provides a "reasonably clear" indication of the direction of the <br>Supreme Court of Puerto Rico.  The court therefore holds that the <br> district court's adoption of the two-part test articulated in <br>Barker and recited in Rivera Santana and Aponte-Rivera accurately <br> reflects the Supreme Court of Puerto Rico's likely decision if <br>               confronted with the issue at hand. <br>     In its application of the two-part test for a design defect, the <br>  district court required the plaintiff to prove that she was <br>   injured and that the design was the proximate cause of her <br>injuries.  At this point, the burden shifted to the defendant to <br>establish that the benefits of the design outweighed its risks.  <br>As identified in Barker, factors to be considered by the jury in <br>conducting this evaluation are <br>     the gravity of the danger posed by the challenged design, the <br>     likelihood that such a danger would occur, the mechanical <br>     feasibility of a safer alternative design, the financial cost of <br>     an improved design, and the adverse consequences to the product <br>     and to the consumer that would result from an alternative design. <br> <br>Barker, 573 P.2d at 455; see also Rivera Santana, slip op. at 9 <br>n.9.  Insofar as the court anticipates that the Supreme Court of <br>Puerto Rico would adopt the two-part test, we also anticipate <br>that the feasibility of a safer alternative design would be a <br>factor relevant to the defendant's burden to prove that the <br>design's benefits outweighed its risks.  See Barker, 573 P.2d at <br>455. <br>     Both the amicus brief submitted by the Product Liability Advisory <br>Council and the defendant's brief seek to persuade this court <br>either (1) that a rule of law more closely resembling the rule of <br>law in the Restatement (Second) of Torts  402A (1965) or the <br>Restatement (Third) of Torts: Products Liability (proposed final <br>draft, April 1, 1997) (adopted May 20, 1997) should be adopted, <br>or (2) that additional elements should be grafted upon the <br>plaintiff's prima facie case.  However, in explicating state law <br>for the purposes of a diversity action, "[o]ur function is not to <br>formulate a tenet which we, as free agents, might think wise, but <br>to ascertain, as best we can, the rule that the state's highest <br>tribunal would likely follow."  Porter, 913 F.2d at 40-41 <br>(alteration in original) (citations omitted).  The court finds, <br>as stated above, that the rule of law the Supreme Court of Puerto <br>Rico would adopt is reasonably clear.  The district court did not <br>err in its conclusion. <br> <br>     II.  Sufficiency of the Evidence <br>     The defendant challenges the sufficiency of the evidence adduced <br>by the plaintiff to establish the element of causation.  At <br>trial, the district court initially reserved judgment on the <br>defendant's motions for judgment as a matter of law pursuant to <br>Federal Rule of Civil Procedure 50(a), and later rejected the <br>defendant's renewed Rule 50(b) motion. <br>     On appeal, we review a district court's grant or denial of a <br>defendant's motion for judgment as a matter of law de novo.  SeeMcMillan v. Massachusetts Soc'y for the Prevention of Cruelty to <br>Animals, 140 F.3d 288, 299 (1st Cir. 1998).  "The standard of <br>review for motions for judgment as a matter of law requires us to <br>view the evidence 'in the light most favorable to the non-moving <br>party, drawing all reasonable inferences in its favor.'"  Id.(quoting Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, <br>436 (1st Cir. 1997)).  "A verdict may be directed only if the <br>evidence, viewed from this perspective, 'would not permit a <br>reasonable jury to find in favor of the plaintiff[] on any <br>permissible claim or theory.'"  Andrade v. Jamestown Hous. Auth., <br>82 F.3d 1179, 1186 (1st Cir. 1996) (alteration in original) <br>(quoting Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir. <br>1993)). <br>     At trial, the plaintiff testified on cross-examination that her <br>seat was in a normal upright position in the car and that she was <br>using her seat belt at the time of the accident.  In response to <br>slowing cars in front of her, the plaintiff applied her brakes <br>but was struck from behind, at which point she collided with the <br>car in front of her.  She was sitting in a normal position at all <br>times during the accident.  When her car came to a stop, the <br>cabin was filled with a smoke-like substance and both air bags <br>had deployed.  The plaintiff felt a burning sensation on her face <br>immediately after the accident, and her lips and face began to <br>swell.  The plaintiff attributed these injuries to the air bags; <br>she "knew that [she] hadn't hit [herself] with anything else" as <br>she did not perceive any impact between her body and anything <br>else in the car.  Trial Tr. of July 30, 1996 at 41, 44, 59-60 <br>(hereinafter "Tr. of 7/30").   <br>     The plaintiff also presented the testimony of Dr. Charneco, <br>unchallenged as an expert in the field of dermatology, who <br>treated the plaintiff two days after the accident.  His diagnosis <br>was "second a [sic] degree burn caused by abrasions."  Tr. of <br>7/31 at 10.  He also testified that the injury was not consistent <br>with an impact with a blunt object as there was no hematoma. <br>     Finally, the plaintiff elicited the following testimony from the <br>defendant's expert witness:  (1) the witness had previously been <br>employed for over six years by the defendant in its legal <br>department as a mechanical engineer consulting with attorneys <br>regarding lawsuits; (2) the witness was at the time of trial an <br>independent consultant, but had testified for the defendant or <br>its associated corporations thirty-six times in the preceding two <br>years; (3) the thirty-six cases represented approximately eighty <br>percent of the cases that the witness had testified in over the <br>preceding two years; (4) the witness was being paid $215 an hour <br>by the defendant; (5) the deployment of the air bag, "the opening <br>process where the bag punches out," occurs very rapidly, with <br>considerable force at high speed, id. at 38; (6) the deployment <br>of the air bag could cause severe injury, including but not <br>limited to, death, head injury, broken bones, and severe <br>bruising; (7) the witness was aware of literature that associated <br>air bags with abrasions and friction burns, see id. at 37; and <br>(8) there was no minimum distance the driver of an automobile <br>could be from the air bag at which there would be no risk of <br>injury from deployment, see id. at 50-52.  The witness also <br>testified that given the constraints surrounding the functioning <br>of the air bag, there was no way to slow its deployment, to <br>cushion or block the driver, and to have it deflate quickly.  Seeid. at 101. <br>     From the evidence adduced by the plaintiff, a reasonable jury <br>could find that it was more likely than not that the deployment <br>of the air bags caused the friction burns on the plaintiff's <br>face.  At this point, the burden shifted to the defendant to <br>establish that the benefits of the design outweighed its risks.  <br>In this regard, the court rejects the argument that the jury was <br>unreasonable in finding that the risks of the design outweighed <br>its benefits.  The jury was not required to believe the testimony <br>of the defendant's expert witness regarding the feasibility of an <br>alternative design or the other Barker factors because the <br>plaintiff adduced sufficient evidence for the jury to find that <br>the defendant's expert was an interested witness.  See 9A Charles <br>Wright & Arthur Miller, Federal Practice and Procedure  2527 at <br>286 (1995) (a "jury is required to believe, and the judge <br>therefore may accept as true on a motion, uncontradicted and <br>unimpeached evidence from disinterested witnesses"); Sonnentheilv. Christian Moerlein Brewing Co., 172 U.S. 401, 408 (1899) <br>("[T]he mere fact that the witness is interested in the result of <br>the suit is deemed sufficient to require the credibility of his <br>testimony to be submitted to the jury as a question of fact").  <br>The court concludes that the evidence was sufficient for the jury <br>to find in the plaintiff's favor. <br> <br>     III.  Spoliation <br>     After the plaintiff's accident, but prior to the defendant's <br>inspection of the subject vehicle, the plaintiff's insurance <br>company declared the plaintiff's vehicle a total loss and sold it <br>at public auction.  Although the purchaser of the automobile was <br>recorded, the parties were unable to locate the new owner of the <br>vehicle.  The defendant therefore moved to have the case <br>dismissed on the ground that it was prejudiced by its inability <br>to inspect the automobile.  In denying the defendant's motion to <br>dismiss, the district court distinguished between manufacturing <br>defects, where a specific product is uniquely defective because <br>of a mistake in the manufacturing process, and design defects, <br>where each and every product is defective, despite being <br>manufactured according to specifications, because the defect is <br>in the design of the product.  The district court determined that <br>in the case of this alleged design defect, proof or refutation of <br>the plaintiff's claim could be supported by evidence other than <br>the vehicle itself and that the defendant would not be unduly <br>prejudiced by the loss of the automobile.  The defendant appeals <br>the district court's refusal to dismiss the complaint.  We review <br>the district court's determination that dismissal was unwarranted <br>for abuse of discretion.  See United States v. Sherlock, 962 F.2d <br>1349, 1354 (9th Cir. 1989). <br>     "Under settled authority, the district court has inherent power <br>to exclude evidence that has been improperly altered or damaged <br>by a party where necessary to prevent the non-offending side from <br>suffering unfair prejudice."  See Sacromona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1st Cir. 1997).  <br>In this case, however, the defendant only moved for dismissal and <br>not for a sanction restricting the evidence admitted.  As a <br>general principle, the court views "[d]ismissal with prejudice <br>'[as] a harsh sanction[,]' which runs counter to our 'strong <br>policy favoring the disposition of cases on the merits.'" <br>Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir. <br>1995) (citations omitted) (dismissal for failure to prosecute). <br>     The intended goals behind excluding evidence, or at the extreme, <br>dismissing a complaint, are to rectify any prejudice the non- <br>offending party may have suffered as a result of the loss of <br>evidence and to deter any future conduct, particularly deliberate <br>conduct, leading to such loss of evidence.  See Sacramona, 106 <br>F.3d at 446.  Therefore, of particular importance when <br>considering the appropriateness of sanctions is the prejudice to <br>the non-offending party and the degree of fault of the offending <br>party.  See id. at 447. <br>     Here, the fact that the plaintiff asserted a design defect claim <br>and not a manufacturing defect claim is relevant to the degree of <br>prejudice the defendant experienced by the loss of the <br>automobile.  Clearly, if a product was manufactured defectively, <br>its defect is likely to be particular to the individual product.  <br>Consequently, a party's examination of that product may be <br>critical to ascertaining, among other things, the presence of the <br>defect.  In design defect cases, however, a party's examination <br>of the individual product at issue may be of lesser importance as <br>the design defect alleged can be seen in other samples of the <br>product.  Nevertheless, examination of the individual product in <br>question may still be of significant import in certain design <br>defect cases where, for example, the question whether the alleged <br>defect or some other factor caused a particular injury is at <br>issue.   <br>     In the case at hand, the defendant identified a number of issues <br>relevant to its defense that inspection of the vehicle may have <br>resolved.  However, evidence as to many of these issues could <br>also have been attained through other means, such as through the <br>testimony of the plaintiff and other persons involved in the <br>accident, through photographs of the car after the accident, and <br>through accident reconstruction.  The plaintiff neither <br>maliciously destroyed evidence nor deliberately attempted to <br>prevent the defendant from inspecting the vehicle.  Indeed, the <br>plaintiff's insurance company sold the car to a third party <br>without the plaintiff's knowledge or consent and the defendant <br>was given the name of the third party who purchased the vehicle.  <br>The defendant moved solely for dismissal, and under the <br>circumstances of this case, we cannot say that the district court <br>abused its discretion in refusing to dismiss the complaint. <br> <br>                           Conclusion <br>     The court finds "any residuum of claimed errors to be without <br>merit and unworthy of extended discussion."  Rodrguez-Hernndezv. Miranda-Vlez, 132 F.3d 848, 860 (1st Cir. 1998).  Because the <br>district court and the jury acted properly within the limits of <br>their authority, the court affirms the outcome below.  Costs are <br>                    awarded to the appellee. <br>                                 <br></pre>

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