The Subrogation Strategist

Although there are times when both parties agree on the need to perform destructive tests on an object, when the parties disagree, the party seeking the destructive tests must justify its request. In Doerrer v. Schreiber Foods, Inc., et al., No. 2017-08582, 2019 N.Y. App. Div. LEXIS 4743, the Second Department of the Supreme Court of New York’s Appellate Division recently explained what a defendant moving to secure destructive testing needs to show in order to perform the testing it seeks.

In Doerrer, the plaintiff claimed that she sustained personal injuries when she choked on an object in a piece of Swiss cheese manufactured by the defendants. Although the plaintiff consented to nondestructive testing on the object, she did not consent to destructive testing. Thus, the defendants moved pursuant to CPLR 3120(1) and 3124 to permit them to alter the plastic object at issue by slicing a piece off of the object in order to use a Fourier Transform Infrared Spectroscopy (FTIR) test to determine the object’s chemical composition. According to the defendants’ expert, cutting a piece from the plastic object would produce a flat surface for the testing that would conclusively show the object’s chemical composition. In opposition, the plaintiff’s expert stated that a micro-FTIR test would produce conclusive results without altering the object’s integrity. The defendants’ expert did not challenge the statement made by the plaintiff’s expert. The trial court denied the defendants’ motion and the defendants appealed.

On appeal, the Second Department explained that testing that destroys or materially alters the item or sample being tested should only be permitted where a court determines, in the exercise of its discretion, that performing the test is required in the interests of justice. To secure destructive testing, a moving party “should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item.” Because the defendants did not establish the absence of an adequate nondestructive test and that altering the evidence was the only method by which they could obtain the information they sought, the Second Department affirmed the decision of the trial court.

The Second Department’s decision serves as a reminder that, when a party moves to conduct destructive testing, whether in a personal injury or a property damage case, the moving party needs to justify its request for destructive testing. In addition, the moving party needs to be prepared to challenge the adverse party’s expert in order to explain why nondestructive testing is inadequate.