Present: All the Justices 

IRIS GENTRY, ETC., ET AL. 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 951640 

 June 7, 1996 

TOYOTA MOTOR CORPORATION, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE 

James F. Ingram, Judge 

 The issue in this appeal is whether the trial court erred in 

dismissing this action for spoliation of evidence. 

 On May 17, 1991, Iris Gentry was rendered paraplegic when 

she lost control of her 1987 Toyota pickup truck and crashed into 

a ravine in Eden, North Carolina. Although Iris has amnesia as 

to the events surrounding the accident, an eyewitness testified 

that the truck's engine had been racing prior to the accident. 

The witness stated that, when Iris shifted gears, the engine 

"went wide open," and the truck "accelerated . . . started 

fishtailing" and went off the road. 

 Iris's attorney employed William Rosenbluth, a purported 

expert on the sudden acceleration of vehicles, to determine what 

could have caused the engine to race. Rosenbluth inspected the 

truck and concluded that a temperature control cable impinged on 

the accelerator pedal rod and caused the sudden acceleration. 

Rosenbluth then, without authorization or permission from anyone, 

removed the temperature control cable by using a hacksaw on the 

truck's instrument panel. He also removed the accelerator pedal 

rod. 

 Thereafter, the Gentrys1

 sued Toyota Motor Corporation 

 

 1During the pendency of this action, the Gentrys divorced, 

and Iris changed her name to Arrington. 
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(Toyota Japan), Toyota Motor Sales, USA, Inc. (Toyota USA), and 

Danville Toyota, Inc. (Danville Toyota) (collectively, Toyota), 

seeking $10,000,000 in damages for bodily injuries sustained by 

Iris while operating an allegedly defective 1987 Toyota pickup 

truck. The Gentrys' action was based upon theories of 

negligence, breach of implied warranties, and strict liability. 

They alleged that Toyota Japan and/or Toyota USA were negligent 

in the design, manufacture, and testing of the truck and in 

failing to warn them of the truck's dangerous and defective 

condition. The Gentrys also alleged that Danville Toyota was 

negligent in selling the truck to them in a defective condition, 

in failing to inspect the truck, and in failing to warn them of 

the defect. 

 Based upon answers to interrogatories and Rosenbluth's 

deposition, Toyota moved to dismiss the action for spoliation of 

evidence (the Spoliation Motion). Toyota claimed that Rosenbluth 

had so damaged the truck during the course of his inspection that 

Toyota was deprived of its right to inspect and test the truck 

for any evidence of defect and that its ability to defend the 

action was severely prejudiced. 

 On April 22, 1993, the trial court conducted an ore tenus

hearing on the Spoliation Motion. At the hearing, Toyota's 

expert, Lee Carr, who had inspected the truck in September 1992, 

testified he had been "faced with a dilemma" because he could 

reach "either one of two conclusions." He stated that either (1) 
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the temperature control cable did not interfere with the throttle 

cable or (2) "there were other conditions present in [the] truck 

that [he could not] now evaluate [and] that [he could not] now 

duplicate that did, in fact, cause the [temperature control] 

cable to come into contact with the throttle pedal assembly." 

Carr further stated that "[w]hatever those conditions were . . . 

[he could not] identify them and most importantly, if they 

existed, [he] can't now know what caused them to be present." 

 After the hearing ended, the Gentrys moved for a stay of 

consideration of the Spoliation Motion to allow testing of the 

truck by another expert. They also sought permission "to 

formulate and serve complete supplemental and amendatory 

responses to discovery and . . . to move the Court to reopen the 

hearing . . . on the [Spoliation Motion] and/or to move for leave 

to file an amended motion for judgment." By order entered 

October 12, 1993, the trial court granted the motion. 

 Thereafter, the Gentrys filed amended interrogatory answers 

setting forth the anticipated opinions of their new expert, Dr. 

Melvin K. Richardson. They also moved for leave to file an 

amended motion for judgment based upon their new expert's 

findings. 

 Richardson had inspected the truck in July and November 

1993. He concluded that a defect had existed in the design or 

manufacture of the truck's carburetor. This defect had allowed 

varnish to accumulate in the "secondary butterfly" valve of the 
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carburetor, causing the valve to stick in the open position and 

produce the sudden acceleration. Richardson stated that 

Rosenbluth's actions had not affected or impaired his ability to 

determine the nature of the defect. Richardson further stated 

that Rosenbluth's conclusions about the cause of the sudden 

acceleration were erroneous. 

 Carr, Toyota's expert, had examined the carburetor in 

September 1992 and again in March 1995 and found that the 

carburetor functioned properly. From the eyewitness' 

observations, Carr proposed yet a third theory regarding how the 

accident occurred. He theorized that, in response to some 

mechanical failure such as a "fuel problem" or an "ignition 

problem," Iris "push[ed] down on the gas." Then, after the 

mechanical failure resolved, "the engine . . . suddenly [had] 

power," causing the truck to "shoot ahead and . . . fishtail." 

Carr also stated that his inspection of and conclusion about the 

carburetor had not been affected by anything that Rosenbluth had 

done. 

 Toyota renewed its Spoliation Motion, and, on June 8, 1995, 

the trial court granted the motion and dismissed the action with 

prejudice. The trial judge stated his reason for granting the 

motion as follows: 

 I think that this case has to be dismissed because 

Mr. Rosenbluth . . . went in with a hack saw and then 

destroyed a vehicle . . . and now has proven to be 

absolutely wrong in his opinion[,] in the way in which 

he conducted his investigation, [and] in the way in 

which he destroyed the vehicle and prevented the 

defendant from properly being able to defend the case. 
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 I think he's responsible for the whole mess which 

inured to the detriment of the plaintiff. 

We awarded the Gentrys this appeal. 

 A trial court's imposition of a sanction will not be 

reversed on appeal unless the court abused its discretion. See 

Oxenham v. Johnson, 241 Va. 281, 287, 402 S.E.2d 1, 4 (1991) 

(decided under Code § 8.01-271.1). This, therefore, is the 

standard we must apply in reviewing the trial court's ruling in 

the present case. 

 Courts often impose sanctions when a litigant or his 

attorney has acted in bad faith. The purpose of such a sanction 

is to punish the offending party and deter others from acting 

similarly. 

 In the present case, the record is clear that neither the 

Gentrys nor their attorney acted in bad faith, and the trial 

court so found. The wrongful act was committed by Rosenbluth who 

acted on his own with neither the consent nor the knowledge of 

the Gentrys or their attorney. Therefore, the dismissal of the 

Gentrys' action did not serve to punish Rosenbluth, the offender. 

 Additionally, Rosenbluth's wrongful act, as deplorable as it 

was, did not prejudice Toyota. The theory upon which the Gentrys 

now seek to recover is totally unrelated to the part of the 

vehicle that Rosenbluth destroyed. Indeed, Carr, Toyota's own 

expert, testified unequivocally that his inspection of and 

opinion concerning the carburetor were not affected by what 

Rosenbluth had done. Therefore, given the lack of prejudice, the 
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dismissal of the Gentrys' action was too severe a sanction. 

 For these reasons, we conclude that the trial court abused 

its discretion in dismissing the Gentrys' action.2

 Accordingly, 

we will reverse the trial court's judgment and remand the case 

for further proceedings. 

Reversed and remanded. JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO and JUSTICE LACY 

join, dissenting. 

 In my opinion, the trial court did not abuse its discretion 

in dismissing this action. 

 Toyota was entitled to examine the allegedly defective 

vehicle in its post-accident condition to determine the cause of 

any malfunction that may have occurred. This examination was 

rendered impossible due to the intentional destruction by the 

plaintiffs' representative of an integral part of the truck. 

 The fact that the plaintiffs have now focused on an alleged 

 

 2Toyota also contends that the Gentrys should be prohibited 

from relying upon Richardson's theory about the cause of the 

accident. Toyota asserts that the Gentrys are estopped from 

advancing this new theory because of the principle that a party 

cannot assume inconsistent and mutually contradictory positions. 

 Toyota relies upon Burch v. Grace Street Bldg. Corp., 168 Va. 

329, 191 S.E. 672 (1937), and its progeny. 

 The estoppel principle is sound, but it does not apply in 

the present case. The Gentrys are not attempting to change their 

position about facts within their firsthand knowledge. Instead, 

they seek to present opinion evidence of an expert that differs 

from that of another expert. Additionally, discovery depositions 

and answers to interrogatories generally are not conclusively 

binding upon a party. TransiLift Equipment, Ltd. v. Cunningham, 

234 Va. 84, 93, 360 S.E.2d 183, 188 (1987). Therefore, we reject 

Toyota's estoppel contention. 
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defect not involving the portion of the vehicle removed with a 

hacksaw by the plaintiffs' representative is irrelevant on the 

issue of prejudice. The manufacturer should not be relegated to 

merely rebutting some recent theory advanced by the plaintiffs 

regarding the accident's cause. Toyota has the right to 

determine whether there is some cause of the accident related to 

the now nonexistent part removed by the plaintiffs. The majority 

has completely disregarded that right to the prejudice of the 

manufacturer. 

 I would affirm the judgment of the trial court.