When It's OK to Demolish the Evidence: Tactics for Destructive Examination and Testing

Therefore, careful consideration should be given to whether a destructive test is necessary, and, if so, under what circumstances.The issue of destructive testing may arise in a number of circumstances. Counsel for the plaintiff may pursue a destructive examination or test before commencing a lawsuit to determine which parties to join and which theories of liability to pursue. In manufacturing defect cases, counsel may seek a destructive examination or test to determine whether a defect exists, or to develop evidence regarding causation. Destructive testing or examinations of the subject product are not usually necessary in design defect cases, where counsel can simply perform the necessary test or examination on an exemplar product.

The most persuasive justification for destructive testing in a manufacturing defect case is to “conclusively determine” whether the alleged defect exists. In Pizza Hut, Inc. v. Midwest Mechanical, Inc., No. 86 C 5487, 1988 U.S. Dist. LEXIS 890, at *3 (N.D. Ill., Jan. 29, 1988), the court allowed a destructive examination of an electrical wire in a refrigeration timer, where the defendant persuaded the court that there was a 90% probability that the examination would result in a “conclusive determination” as to whether the wire was defective. Similarly, in Ostrander v. Cone Mills, Inc., 119 F.R.D. 417 (D. Minn. 1988), the plaintiffs brought an action based on the alleged flammability of children's pajamas manufactured and sold by the defendants. The plaintiffs claimed that their child was severely burned because the subject pajamas were not treated with flame retardants required by federal law. The defendants claimed that the garments had been treated with effective flame retardants and that these retardants had likely been washed away due to improper laundering by the plaintiffs. In support of their motion for permission to conduct destructive testing of fabric swatches from the garments, the defendants explained that it was necessary to conduct chemical tests of the fabric to detect the presence of certain chemical deposits that may collect during laundering. The court allowed the defendants to conduct the proposed testing of the fabric swatches because the testing was necessary to their defense of the case.