UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Stephanie B. Barrett,

individually; and as

Administratrix of the Estate

of Robert C. Barrett, deceased;

and as natural mother of

Madison Hope Barrett, a minor,

Plaintiff and

Counterclaim Defendant

v. Civil No. 06-cv-240-SM

Opinion No. 2008 DNH 172

Ambient Pressure Diving, Ltd.,

Defendant and 

Counterclaim Plaintiff

O R D E R

Plaintiff’s decedent, Robert C. Barrett, died in a diving

accident on August 3, 2002. He was using an Inspiration

“rebreather,” a closed-circuit underwater breathing apparatus

manufactured by Ambient Pressure Diving, Ltd. (“Ambient”). 

Plaintiff asserts claims of negligence, products liability,

breach of warranty, personal injury, wrongful death, and unfair

trade practices. Defendant asserts counterclaims for fraud on

the court and spoliation of evidence. Before the court are

defendant’s motion to apply English law in deciding the merits of

plaintiff’s claims (document no. 187), defendant’s motion for

default judgment based on plaintiff’s alleged spoliation of

evidence (document no. 197), and plaintiff’s motion for summary

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judgment on defendant’s counterclaims (document no. 200). Each

motion is duly opposed.

Defendant’s Motion to Apply English Law

Because jurisdiction in this case is based on diversity of

citizenship, the parties’ dispute over applicable law would,

ordinarily, be resolved by applying New Hampshire’s choice-of-law

rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487,

496 (1941). However, when there is no conflict between the laws

of the fora preferred by opposing parties, there is no need to

undertake a choice-of-law analysis. See Royal Bus. Group, Inc.

v. Realist, Inc., 933 F.2d 1056, 1064 (1st Cir. 1991). 

In support of its argument that application of English law

would not overly complicate the court’s task, defendant asserts

that “English product liability, breach of warranty and consumer

protection laws are substantially similar to the laws of New

Hampshire in these areas.” That assertion undermines defendant’s

motion. If English law and New Hampshire law are substantially

similar, little purpose would be served by applying the former

rather than the latter. While it is not entirely clear,

defendant’s preference for English law might be suggested in

document no. 147-3, Defendant’s Brief in Support of its Motion in

Limine to Preclude Evidence Regarding Loss of the Value of Life

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or Hedonic Damages. In that brief, defendant asserts that

“English law does not permit the recovery of hedonic damages,”

and supports that assertion with a copy of the English Consumer

Protection Act of 1987, which covers product liability, consumer

safety, and misleading price indications. 

Defendant does not, however, identify any particular section

of the English Consumer Protection Act, or any precedent

interpreting that Act, that bars recovery of hedonic damages, and

the court is unable to locate such authority. Absent some

indication that English law is in conflict with New Hampshire

law, and given defendant’s assertion that the two bodies of law

are “substantially similar,” defendant’s motion to apply English

law is denied, albeit without prejudice.

Defendant’s Motion for Default Judgment

The day after Robert Barrett died, Mike Fowler began a twoday inspection of Barrett’s rebreather that involved some

disassembly. Defendant contends that Fowler inspected Barrett’s

rebreather at the request of the Susquehanna Regional Police

Department (“SRPD”). Plaintiff counters – unpersuasively – that

Fowler undertook his inspection as Ambient’s agent. Among the

items Fowler inspected were two VR3 dive computers (“VR3s” or

“dive computers”) and a cannister containing scrubber material

Case 1:06-cv-00240-SM Document 261 Filed 09/16/08 Page 3 of 12
1 Without downloading data from Barrett’s VR3s, Fowler was

able to recover a small bit of information from them on each of

Barrett’s last eight dives: the start time, the maximum depth,

and the total duration.

2 The instruction manual for Barrett’s rebreather refers to

a different scrubber material, 1.0 - 2.5 mm diving grade

Sofnolime, and warns that the Sofnolime use-life data it provides

does not apply to other scrubber materials. 

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intended to absorb carbon dioxide (“CO2”)from exhaled air prior

to recirculation. VR3s record several pieces of data, at tensecond intervals, and store that information for one year. 

Within that year, information that has been stored in a VR3 can

be downloaded and used to prepare profiles of individual dives. 

After his inspection, Fowler prepared a three-page report.

Neither the police nor Fowler downloaded data from Barrett’s

dive computers.1 However, Fowler’s report suggested doing so, to

recover a dive profile that could be examined “to pinpoint

exactly the time [Barrett] stopped moving.” (Def.’s Mot. for

Sanctions (document no. 103), Ex. B, at 3.) During his

examination of the rebreather, Fowler drained water from the

unit’s CO2 scrubber cannister, noted that it had been packed with

a CO2 absorbent called “Drager Dive Sorb,”2 and further noted that

the absorbent was saturated. In a draft of his report, but

seemingly not the final version, Fowler suggested further testing

of the CO2 absorbent for calcium carbonate, as a way of

determining whether the absorbent had been exhausted.

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3 While it is not clear, it appears that the SRPD retained

custody of all of Barrett’s equipment from the day of the

accident until the equipment was transported to NEDU. A January

9, 2003, letter from Attorney Frederic Heyman to Lieutenant

Steven Englert of the SRPD suggests that Attorney Heyman intended

to take custody of the VR3 units after a meeting scheduled for

January 15. (Def.’s Mot. for Default Judgment (document no.

197), Ex. G.) But in a follow-up letter dated January 17,

Attorney Heyman indicated that the VR3 units were to be sent to

NEDU along with the rest of Barrett’s equipment (id., Ex. H),

which suggests that he may not have taken them with him after the

January 15 meeting. In any event, Attorney Heyman never

downloaded any data from those units. (Pl.’s Opp. to Def.’s Mot.

to Compel (document no. 231), Ex. A (Heyman Aff.).)

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The SRPD held Barrett’s diving equipment until it was

transported (in mid March, at plaintiff’s expense) to the Navy

Experimental Dive Unit (“NEDU”) for further testing.3 David

Cowgill of NEDU reported that he “interrogated” the VR3 dive

computers for “stored dive data.” That interrogation produced

the same information that Fowler recovered from the VR3s – start

times, maximum depths, and durations – and the NEDU report does

not include dive profiles. Cowgill also reported that while NEDU

received “a bag of used carbon dioxide absorbent . . . [n]o tests

were performed on the absorbent material due to degradation that

occurs after flooding.” (Id., Ex. D, at 18.) NEDU’s final

report is dated June 9, 2003, and it was addressed to Lt. Englert

of the SRPD. 

At some point in July, Barrett’s diving equipment was turned

over to Attorney Heyman (id., Ex. E, at 16; Def.’s Mot. for

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Default Judgment, Ex. F (Englert Dep.), at 126), but the record

does not appear to indicate whether NEDU ever returned the bag of

scrubber material. On September 8, 2003, just over a month after

it became impossible to download data from Barrett’s VR3 units,

Attorney Heyman sent a number of items to Jeffrey Bozanic for

examination, including Barrett’s VR3 units and a VR3 download

kit. (Def.’s Mot. for Sanctions (document no. 103), Ex. E, at 39-

40.) 

Ambient’s attempt to download data from the VR3 units in

November 2007 was unsuccessful.

Defendant contends that it is entitled to default judgment,

or some lesser sanction such as exclusion of evidence or a jury

instruction on spoliation, because plaintiff failed to preserve

the data recorded on Robert Barrett’s VR3 dive computers and the

absorbent material recovered from the CO2 scrubber cannister on

Barrett’s rebreather. Plaintiff counters that Fowler was

Ambient’s agent and could have downloaded the VR3 data the day

after the accident if he had wanted to, and that she did not have

the ability to download VR3 data until after it became

unavailable due to the passage of time. Regarding the CO2

absorbent, plaintiff argues that she could not be liable for

spoliation because there is no evidence that she ever had the

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absorbent in her possession. Finally, plaintiff contends that if

anyone is liable for spoliation, it is Ambient, as a result of

Fowler’s tear-down of the rebreather during the course of his

inspection.

“Sanctions for spoliation range from dismissal of the

action, exclusion of evidence or testimony or instructing the

jury on a negative inference to spoliation whereby [the] jury may

infer that party that destroyed evidence did so out of

realization that it was unfavorable.” Jimenez-Sanchez v.

Caribbean Rests., LLC, 483 F. Supp. 2d 140, 143 (D.P.R. 2007)

(quoting Perez v. Hyundai Motor Co., 440 F. Supp. 2d 57, 62

(D.P.R. 2006)). 

The intended goals behind excluding evidence, or

at the extreme, dismissing a complaint, are to rectify

any prejudice the non-offending party may have suffered

as a result of the loss of evidence and to deter any

future conduct, particularly deliberate conduct,

leading to such loss of evidence. See Sacramona [v.

Bridgestone/Firestone, Inc.], 106 F.3d [444,] 446 [(1st

Cir. 1997)]. Therefore, of particular importance when

considering the appropriateness of sanctions is the

prejudice to the non-offending party and the degree of

fault of the offending party. See id. at 447.

Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir.

1998) (emphasis added). In light of those goals, the court of

appeals for this circuit “views dismissal with prejudice as a

harsh sanction which runs counter to [its] strong policy favoring

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4 Plaintiff has testified, by affidavit, that she never

downloaded Barrett’s VR3s. Defendant’s only evidence to the

contrary is exceptionally weak, consisting of David Bouder’s

deposition testimony that a telephone conversation with plaintiff

indicated to him that she “was familiar with the dive profiles.” 

(Def.’s Mot. for Default Judgment, Ex. I, at 10.) However, that

statement came after Bouder had testified that he didn’t “know

whether Stephanie [the plaintiff] had [VR3 downloads] or not.”

(Id. at 9.)

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the disposition of cases on the merits.” Id. at 28 (quoting

Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir.

1995)) (brackets and internal quotation marks omitted).

Assuming plaintiff actually committed spoliation – which is

far from clear – dismissal of her case would be too harsh a

sanction. In some cases, a spoliator may reasonably be charged

with knowledge of the potential evidentiary value of the material

he or she is alleged to have destroyed. See, e.g., Blinzler v.

Marriot Int’l, Inc., 81 F.3d 1148, 1159 (1st Cir. 1996)

(defendant destroyed telephone logs while on notice that they

were relevant to likely litigation, in which timing of phone call

recorded in those logs was at issue). But here, plaintiff can

hardly be said to have known that VR3 downloads would hurt her

case. It is all but undisputed that the VR3 dive computers were

never downloaded,4 so plaintiff did not know what evidence they

contained or whether that evidence was favorable or unfavorable

to her case. Thus, she stands in a different position than the

defendant in Blinzler, which could reasonably be charged with

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knowing what time plaintiff called the hotel front desk asking

for medical assistance and what time front desk personnel called

for an ambulance. Similarly, the CO2 absorbent was never

analyzed, so plaintiff had no idea whether calcium carbonate

testing would have helped her case or hurt it. 

Regarding plaintiff’s degree of fault, even if the VR3 data

became inaccessible while Attorney Heyman had custody of the

VR3s, it seems apparent that neither Attorney Heyman nor the

plaintiff herself knew that data from the VR3 would become

unavailable one year after the accident. Plaintiff purchased a

download kit more than one year after the accident, and Attorney

Heyman sent a download kit to Jeffrey Bozanic in September of

2003. Thus, the record suggests that both plaintiff and Attorney

Heyman believed – erroneously, it turns out – that the VR3 data

were still accessible more than a year after the accident, which

diminishes their degree of fault for letting the one-year period

pass without downloading the VR3s. As for the scrubber material,

it seems to have been lost before plaintiff, through her

attorney, ever took custody of Barrett’s diving equipment, which

makes it difficult to fault her for its loss.

Because plaintiff is not alleged to have engaged in any

deliberate conduct that resulted in the destruction or loss of

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either VR3 data or scrubber material, and because she appears

never to have had control over the scrubber material, this is not

a typical spoliation case. See, e.g., Trull v. Volkswagen of

Am., 197 F.3d 88 (1st Cir. 1999) (in products liability action,

plaintiffs’ insurance company disposed of the car in which

plaintiffs were injured); Collazo-Santiago, 149 F.3d 23 (same);

Blinzler, 81 F.3d 1148 (defendant destroyed telephone records);

Jimenez-Sanchez, 483 F. Supp. 2d 140 (defendant in products

liability action refused to turn over bottle of allegedly tainted

water to person injured after drinking it, and subsequently lost

it). If there was any spoliation at all, plaintiff was at worst

negligent, making her degree of fault relatively minor. 

Accordingly, defendant is not entitled to dismissal of

plaintiff’s claims. Whether defendant may be entitled to other

relief for spoliation will be decided during the course of trial.

Plaintiff’s Motion for Summary Judgment

Defendant initially asserted three counterclaims, but has

voluntarily withdrawn Count Two, leaving claims for fraud on the

court (Count One) and spoliation of evidence (Count Three). 

Plaintiff moves for summary judgment on both counts.

Notwithstanding defendant’s assertion to the contrary, the

First Circuit has not “recognized that a defendant may maintain

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an independent cause of action against a plaintiff for ‘fraud on

the court.’” Rather, in Hull v. Municipality of San Juan, 356

F.3d 98 (1st Cir. 2004), the case on which defendant relies for

the cause of action described in Count One of its counterclaim,

the court of appeals affirmed the district court’s decision to

dismiss a personal injury lawsuit based its “finding of fraud in

the conduct of the litigation” id. at 99. In other words, the

court recognized fraud on the court as a basis for dismissing a

plaintiff’s claims, but not as a theory of recovery. Fraud on

the court is not an independent cause of action. Plaintiff’s

motion for summary judgment is granted as to Count One of

defendant’s counterclaim.

Regarding Count Three, defendant’s claim for plaintiff’s

alleged spoliation of evidence, the existence of such a cause of

action is an unsettled question of New Hampshire law. See

Rodriguez v. Webb, 141 N.H. 177, 179 (1996) (“we need not decide

whether New Hampshire recognizes an independent cause of action

based on intentional spoliation of evidence”). In the absence of

a recognized cause of action under New Hampshire law, and given

the availability of other appropriate relief, as discussed above,

plaintiff is entitled to summary judgment on Count Three of

defendant’s counterclaim.

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Conclusion

For the reasons given, defendant’s motion to apply English

Law (document no. 187) and its motion for default judgment

(document no. 197) are both denied, and plaintiff’s motion for

summary judgment on defendant’s counterclaims (document no. 200)

is granted.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

September 16, 2008

cc: Dona Fenney, Esq.

John P. Fagan, Esq.

Richard W. Evans, Esq.

Mary A. Dempsey, Esq.

Walter P. DeForest

David G. Concannon

Thomas M. Brown, Esq.

Courtney Q. Brooks, Esq.

David J. Berardinelli, Esq.

Nannina L. Angioni, Esq.

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