What Happens If the Defective Product Is Lost or Destroyed in a Georgia Case?
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The case can continue, but whoever lost the product may face a spoliation sanction if they had a duty to preserve it at the time. For an injured person, the Supreme Court of Georgia held in Cooper Tire & Rubber Co. v. Koch (2018) that the duty arises when that person “actually anticipates or reasonably should anticipate litigation”. Before that point, discarding a wrecked product is not spoliation.
The Koch case: a crushed SUV and a saved tire
Gerald Koch’s Ford Explorer rolled over on Interstate 16 in April 2012 after the tread on a rear tire detached; he died in the hospital weeks later. While he was still alive, his wife, unable to pay the tow yard’s daily storage fee, signed the title over so the vehicle could be sold for scrap. At her husband’s direction she asked the yard to “save the tires”; the left rear tire was kept, and the vehicle and the other tires were crushed. She hired counsel after his death and sued the tire maker in 2014.
The manufacturer asked for dismissal or other sanctions for spoliation. The trial court found that litigation was not reasonably foreseeable to her when the vehicle was destroyed, and the Supreme Court affirmed, holding that “like a defendant’s duty, a plaintiff’s duty to preserve relevant evidence in her control arises when that party actually anticipates or reasonably should anticipate litigation”.
The same test for both sides
The defendant’s duty was set out in Phillips v. Harmon (2015), a birth-injury case in which a hospital discarded paper fetal-monitor strips with nurses’ handwritten notes. The Supreme Court held that the duty “arises when litigation is reasonably foreseeable to the party in control of that evidence” and does not require notice of a claim from the injured person. The general rules are covered in spoliation of evidence in Georgia.
| Who controlled the product | When the duty to preserve began | Possible consequence if breached |
|---|---|---|
| The injured person or family | When they actually anticipated or reasonably should have anticipated suing (Koch) | Sanctions against the plaintiff's case (the manufacturer in Koch asked for dismissal) |
| The manufacturer, seller, or other defendant | When litigation was reasonably foreseeable to it, with or without notice (Phillips) | A jury instruction under § 24-14-22 or other sanctions |
Section 24-14-22 supplies the presumption used against a party that withholds evidence: when a party “omits to produce” evidence within its power, “a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted”.
Proving a defect without the product
Losing the product can make a case harder, especially a manufacturing defect claim, which compares the failed unit with the design; see manufacturing defect, design defect, or failure to warn. In Koch, part of the failed tire survived, the tread itself was never recovered, and the claims went forward. Other evidence can fill gaps: photographs and video, witness accounts of the failure, purchase records identifying the model and lot, recall notices, and testing of identical products.
Steps to take with a product after an injury
- Do not discard, repair, or return the product, its packaging, or its parts.
- Store it where it will not be altered, and photograph it as found.
- If a vehicle is at a tow yard, ask in writing that it be held, and ask the yard about fees before signing any title transfer.
- Keep receipts, manuals, and serial or lot numbers.
- Do not let anyone test or take apart the product without notice to the parties who may be sued, because destructive testing can itself raise spoliation questions.
Sources
- O.C.G.A. § 24-14-22.
- Cooper Tire & Rubber Co. v. Koch, 303 Ga. 336 (2018)
- Phillips v. Harmon, 297 Ga. 386 (2015)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.