The plaintiff in Applebaum v. Target Corporation et. al., Case No. 15-2198 (6th Cir., Aug. 2, 2016) purchased a bicycle from Defendant and, during her first ride, fell off the bike hurt her shoulder. She sued Defendant for selling her a bike with defective brakes. At trial, the case rested on whether the bike was a new or used bike. Plaintiff had originally seen the bike at one Target store, but when she returned, it was gone; an employee found another bike at a different location, but that bike had been returned because of a brake problem. Plaintiff called that location and an employee told her the bike was “perfect, all fixed.” Defendant’s employee claimed Plaintiff did not ask about whether the bike had been repaired and only asked whether it was in stock. When Plaintiff took the bike for a ride, she fell off; a passerby who assisted her pointed out to her that the brakes were clamped on the tire. Plaintiff claimed she returned the bike; the employee of Defendant said she left with it. The bike was not available as evidence. At trial, the jury found that Plaintiff had not shown that the bike caused her to fall.
Plaintiff appealed, stating that, among other things, the court was mistaken in limiting the scope of an adverse inference instruction given based upon Defendant’s spoliation of evidence. Plaintiff claimed to have returned the bike, but Defendant failed to produce it, and the court instructed the jury that if it found that 1) the bike had previously been returned to fix the brakes; and 2) that Plaintiff had returned the bike; and 3) that Defendant disposed of the bike without reasonable excuse, the jury could infer that inspection would have shown that the brakes were not repaired. Plaintiff averred that the jury should also have been instructed that any destruction of the bike prevented forensic examination and that an adverse inference could also be drawn from Defendant’s failure to produce certain documentary evidence related to repair history and past ownership.
The court disagreed, finding that these instructions were either not proper or were overkill. The court also noted that Plaintiff sought adverse inference instruction under FRCP 37(e), which sanctions spoliation of ESI, but that she did not show that Defendant had intent to deprive her of the use of any ESI. Negligence and gross negligence, the court stated, are not sufficient. Plaintiff could not prove this, because she could not even prove that the records were destroyed or that they even existed in the first place. The court affirmed the trial court’s decision.