Destructive Testing has posted an interesting article about destructive testing in products liability actions.  The article was written by Michael Hoenig and was originally published in the New York Law Journal.

The article discussed the recent case of Mirchandani v. Home Depot, U.S.A., Inc., 235 FRD 611 (D. Md. 2006), in which the court was faced with a request to permit destructive testing of a bolt that allegedly failed on a ladder.  The court sought to achieve a "balance between the ‘costs of irreversibly altering the object and the benefits of obtaining the evidence sought in the case.’"  In doing so it weighed these four factors:

"(1) whether the proposed testing is reasonable, necessary and relevant to proving the movant’s case;

(2) whether the non-movant’s ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way;

(3) whether there may be any less prejudicial alternative methods of obtaining the evidence sought; and

(4) whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant’s ability to present evidence at trial. "

The Court allowed the testing to procedure, subject to certain safeguards designed to reduce any prejudice to the defendant.  Specifically, the court said that "defendant will be allowed to attend the testing; all test procedures will be photographed; and plaintiff will produce a detailed protocol of the intended testing, explaining all procedures."

Recall that in Tennessee Rule 34A of the Tennessee Rules of Civil Procedure provides that "[b]efore a party or an agent of a party, including experts hired by a party or counsel, conducts a test materially altering the condition of tangible things that relate to a claim or defense in a civil action, the party shall move the court for an order so permitting and specifying the conditions. Rule 37 sanctions may be imposed on an offending party."  The Mirchandani  case and the other cases cited in this article will be helpful to a trial court in determining the circumstances under which testing should be conducted.



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