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

By James H. Rotondo and Maxwell Branson

Destructive testing or examination of evidence in product liability cases may be a high-risk proposition. Proposing a destructive test or examination often discloses the thought processes of counsel or expert witnesses. In most cases, there probably will be only one opportunity to perform a destructive test or examination, so it must be done right the first time. The party proposing the destructive test or examination will be bound by the result, good or bad.

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.

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