Why more products cases are won or lost in the first weeks than in the courtroom

A products case is proved with physical evidence, and physical evidence is perishable. The unit that failed can be repaired, scrapped, returned to a lessor, cleaned by an insurer, or simply thrown away before a lawyer is ever retained; the fracture surface can be contaminated, the fire debris discarded, the vehicle crushed. What survives, and how well it was documented, will determine whether an expert can form a reliable opinion, whether that opinion survives a Daubert challenge, and whether the case is economically worth bringing at all. In Missouri the doctrine and the economics push in the same direction: the spoliation rule offers no remedy for the merely negligent loss of evidence, and the cost of doing the investigation properly is front-loaded onto the plaintiff. The practical consequence is that the investigation phase is not a preliminary to the merits—it is the merits. This article addresses how to secure and preserve the product, the Missouri spoliation doctrine and what its adverse inference actually does, the discovery tools for inspection and destructive testing, the expert and Daubert stakes, the federal overlay, and the economics that drive case selection.

I. The First Task: Securing and Preserving the Product

Everything begins with the artifact. Counsel should move immediately to locate the failed unit and, where possible, exemplar units of the same model; to photograph and videotape it in place and in its as-found condition before anyone handles it; to secure it under a documented chain of custody; and to protect it from alteration, repair, cleaning, or disposal. Preservation letters—often called litigation-hold or spoliation letters—should go promptly to every person or entity that may control the product, its component parts, maintenance and service records, and any electronic data, because in a products case the evidence is frequently not in the client’s hands. It sits with an employer, a repair shop, an insurer, a lessor, or the manufacturer itself. Where the item is held by a third party who may discard it, the plaintiff must chase it early—by agreement, by buy-back or subpoena, or by suit—rather than assume it will still exist when discovery opens. And because these cases can take years, the plaintiff must be prepared to store the item intact, sometimes in secured or climate-controlled conditions appropriate to fire debris, biological contamination, or a large industrial machine, for the life of the litigation.

The reason for this urgency is not merely evidentiary tidiness. As the next sections explain, Missouri gives a litigant no remedy when relevant evidence is lost through ordinary negligence, and no cause of action at all against the third party who destroyed it. The preservation letter is therefore the single most important early document in the file, because it is what converts a later loss from an unremediable negligent misfortune into a sanctionable failure to honor a recognized duty.

II. Missouri’s Spoliation Doctrine: A Narrow, Intent-Focused Penalty

Spoliation in Missouri is not a duty-and-breach regime; it is a penalty doctrine reserved for a party who destroyed evidence in order to suppress the truth. The controlling en banc statement is Brown v. Hamid, 856 S.W.2d 51, 56–57 (Mo. banc 1993): the doctrine “applies when there is intentional destruction of evidence, indicating fraud and a desire to suppress the truth,” and destruction “without a satisfactory explanation gives rise to an inference unfavorable to the spoliator.” The Court of Appeals has repeatedly underscored the intent threshold. In Schneider v. G. Guilliams, Inc., 976 S.W.2d 522, 527 (Mo. App. E.D. 1998), the proponent must “make a prima facie showing that the opponent destroyed the missing [evidence] under circumstances manifesting fraud, deceit or bad faith,” and “[m]ere negligence is not enough.” DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 873 (Mo. App. W.D. 2002), and Marmaduke v. CBL & Associates Management, Inc., 521 S.W.3d 257, 269 (Mo. App. E.D. 2017), say the same: “the destructive act must be intentional, indicating fraud, deceit, or bad faith,” and simple negligence will not do. The rule reaches physical evidence, records, and surveillance video alike—Pisoni v. Steak ’N Shake Operations, Inc., 468 S.W.3d 922, 925 (Mo. App. E.D. 2015); Baldridge v. Director of Revenue, 82 S.W.3d 212 (Mo. App. W.D. 2002) (no inference where nothing showed the destruction of a videotape was in bad faith).

Because direct proof of a “desire to suppress the truth” is rare, bad faith is usually established circumstantially—from the combination of a missing item, a duty to have kept it, and an evasive or shifting account of its disappearance. DeGraffenreid is the model: the adverse inference attached against the trucking company because missing telephone logs, coupled with evasive testimony, left the destruction unexplained. That framing also identifies the standard defense. Because the inference arises only from destruction “without a satisfactory explanation,” a defendant can defeat or blunt it by explaining the loss—a routine document-retention or business practice, an inadvertent loss, or destruction that occurred before any duty to preserve had attached. The contest, in practice, is fought over timing and candor: the plaintiff proves destruction after notice and an implausible account; the defendant proves a clean, contemporaneous retention record.

III. What the Adverse Inference Does—and Does Not Do

The remedy Missouri attaches to spoliation is frequently overstated, and getting it right matters at both the summary-judgment and the instruction stage. The inference “punishes the spoliator[] by holding [it] to admit that the destroyed evidence would have been unfavorable to [its] position.” Hill v. SSM Health Care St. Louis, 563 S.W.3d 757 (Mo. App. E.D. 2018) (quoting Schneider, 976 S.W.2d at 526). But—and this is the load-bearing limitation—“[t]he adverse inference . . . does not prove the opposing party’s case.” Id. The spoliator is held to a legal admission that the missing item was unfavorable to it; the opponent must still make a submissible case on every element—defect, causation, damages. The inference does not shift the burden of proof, and it is not itself evidence of the defect. A plaintiff whose entire theory depends on the destroyed product cannot ride the inference to a verdict; the inference fills a gap in the spoliator’s position, not the elements of the claimant’s case.

Nor is spoliation ordinarily a dispositive sanction. The Missouri response is evidentiary calibration—an adverse-inference instruction, or an order “impact[ing] the evidence the jury may hear regarding the subject matter of the spoliated evidence,” Marmaduke, 521 S.W.3d at 270—not automatic dismissal or default. Terminating relief in Missouri flows from a different track: the discovery-sanction machinery of Rule 61.01, triggered by a party’s failure to comply with discovery obligations or court orders. Keeping the two tracks distinct is essential, because a litigant who wants case-ending relief for the destruction of evidence generally must build it through discovery orders and Rule 61.01, not through the common-law spoliation inference alone.

IV. No Independent Tort, and the Trigger of the Duty to Preserve

Two settled limits shape the strategy. First, Missouri does not recognize spoliation as an independent cause of action. The governing authority is a products case: Baugher v. Gates Rubber Co., 863 S.W.2d 905, 907 (Mo. App. E.D. 1993), holds that “Missouri has not recognized spoliation, either intentional or negligent, as the basis for tort liability against either a party or a non-party.” The Court of Appeals reaffirmed the point as recently as 2025 in Sandbach v. KMS-KFC, LLC (Mo. App. E.D. 2025), affirming dismissal of a stand-alone spoliation suit and confirming that Missouri remains with the majority of states declining to recognize the tort. There is thus no freestanding remedy against the employer, insurer, or repair shop that destroyed the product; the litigant’s recourse is the evidentiary inference, and only against a party who did the destroying.

Second, Missouri imposes no broad, free-standing duty to preserve. “Absent some special relationship or duty arising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party.” Baugher, 863 S.W.2d at 911. A preservation obligation instead enters the analysis as one route to the required intent: the inference may arise where the spoliator “had a duty or should have recognized a duty to preserve the evidence,” Schneider, 976 S.W.2d at 527; Morris v. J.C. Penney Life Insurance Co., 895 S.W.2d 73, 77–78 (Mo. App. W.D. 1995). And the trigger for that recognized duty is the familiar one: reasonable anticipation of litigation. In Tribus, LLC v. Greater Metro, Inc., 589 S.W.3d 679, 692–93 (Mo. App. E.D. 2019), the court refused an adverse inference because there was no duty to preserve “absent formal notice of a claim or circumstances manifesting reasonable anticipation of litigation,” and no evidence of intentional or bad-faith destruction.

This doctrinal architecture is exactly why the preservation letter matters so much. Standing alone, a later loss is “simple negligence,” for which the doctrine gives nothing. But a documented preservation demand—ideally reinforced by a filed suit and by any independent record-retention obligation the custodian bears—converts a subsequent destruction into a loss the party “should have recognized a duty” to prevent, and one occurring after notice. A recent illustration outside the products context is instructive on the mechanics: where a defendant destroyed its records despite a preservation letter, a filed suit, and an independent regulatory retention duty, the adverse inference was upheld. The lesson for products counsel is to build that predicate deliberately and early, on every custodian who might hold the artifact.

V. The Discovery Tools: Inspection, Testing, and Destructive Examination

Once suit is filed, the physical evidence is reached through Missouri’s discovery rules. Rule 58.01—the state counterpart to Federal Rule of Civil Procedure 34—permits a party to demand to “inspect, copy, test, or sample” tangible things within another party’s possession, custody, or control, and to enter upon land or property to inspect, measure, photograph, test, or sample a fixed installation or accident scene. The scope and proportionality of that discovery, and the availability of protective orders, are governed by Rule 56.01—Missouri’s Rule 26 analog—whose subsection (b) frames relevance and proportionality and whose subsection (c) authorizes “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Noncompliance with a resulting order is enforced through the sanction provisions of Rule 61.01.

Destructive testing—cutting, sectioning, or otherwise consuming or altering the item to examine a weld, a fracture, or an internal component—deserves special care, because in Missouri there is no dedicated rule or published appellate decision governing it. The examination is instead structured out of the general tools: the “test or sample” authority of Rule 58.01, conditioned by a protective order under Rule 56.01(c). Best practice, borrowed from federal Rule 34 experience, is to proceed only under a written protocol that gives notice to all parties, documents the item non-destructively first (photograph, measure, weigh, and where appropriate x-ray or CT before any cutting), conducts the examination jointly with all parties’ experts present, and specifies by stipulation or court order the sequence of testing, the custody and preservation of removed components and remnants, and the allocation of cost. The reason for the ceremony is that unilateral, undocumented alteration of the very item in dispute is the classic trigger of spoliation exposure and of expert exclusion alike.

Finally, the product must be authenticated to be admitted. Missouri has no codified rules of evidence, so authentication and chain of custody are matters of common law: the proponent must show the item is what it purports to be and, where its identity or condition could change, give the court reasonable assurance that the exhibit is the same object in substantially the same condition as at the relevant time. Missouri does not require the exclusion of every possibility of tampering; gaps in the chain go to the weight of the evidence, not its admissibility, and a durable, serial-numbered, or distinctively marked product can often be authenticated by a witness’s identification of its distinctive characteristics even without an unbroken custody chain. That forgiving standard is not a license for carelessness—an item whose condition was altered between the accident and trial invites both an authentication fight and a reliability attack on every expert who examined it.

VI. Investigation as the Merits: Experts and the Daubert Gate

The investigation phase is where the case is actually won or lost, because since 2017 the expert opinions that prove a defect must clear a Daubert gate that rewards early, methodical, documented work. Section 490.065.2 RSMo requires that expert testimony rest on sufficient facts or data, be the product of reliable principles and methods, and reflect a reliable application of those methods to the facts, and Missouri courts apply the federal gloss of General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997): a court need not admit opinion evidence “connected to existing data only by the ipse dixit of the expert,” and may exclude where there is “too great an analytical gap between the data and the opinion proffered.” A poorly preserved product, an undocumented inspection, or a test that cannot be reproduced is the raw material of an analytical-gap exclusion, because the opinion becomes assumption bridged to conclusion without data. Gebhardt v. American Honda Motor Co., 627 S.W.3d 37 (Mo. App. W.D. 2021), affirmed exclusion of a causation expert—and summary judgment—precisely because his theory rested on untested assumptions without confirmatory testing or validation.

The twin dangers of a botched investigation are captured in a single case. The tractor-rollover litigation in Menz v. New Holland North America, Inc. generated two Eighth Circuit opinions: the first, 440 F.3d 1002 (8th Cir. 2006), was a spoliation decision arising because the plaintiff had made post-accident repairs to the tractor and sold a component; the second, 507 F.3d 1107 (8th Cir. 2007), affirmed the exclusion of the plaintiff’s design expert as speculative under the reliability standard. Alteration of the product first exposed the case to spoliation sanctions, and the compromised record then could not support a reliable expert—the two failure modes of a mishandled investigation, in one file. The point generalizes to the whole expert roster a products case may require: mechanical and manufacturing engineers; metallurgists and materials scientists analyzing fracture, fatigue, weld, or corrosion; fire-origin-and-cause investigators working under NFPA 921; electrical engineers; accident reconstructionists; biomechanics and injury-causation experts; and human-factors and warnings specialists. Each depends on a preserved, documented artifact. The metallurgist cannot read a fracture surface that was cleaned or re-welded; the fire expert cannot reconstruct an origin from a discarded appliance; the reconstructionist cannot model a vehicle that was crushed for scrap.

VII. The Federal Overlay: Rule 37(e), Silvestri, and Removal

Two features of federal practice matter to a Missouri products lawyer, because many of these cases are removed or filed in federal court. First, the federal duty to preserve is broader and better defined than Missouri’s. It “arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation,” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216–17 (S.D.N.Y. 2003), and for physical evidence the touchstone is Silvestri v. General Motors Corp., 271 F.3d 583, 590–91 (4th Cir. 2001), holding that the duty “extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Second, for electronically stored information, Federal Rule of Civil Procedure 37(e), amended in 2015, permits curative measures on a mere showing of prejudice, but reserves the harshest sanctions—an adverse-inference instruction, dismissal, or default—for cases in which “the party acted with the intent to deprive another party of the information’s use in the litigation.”

The interaction with Missouri law is worth understanding. The Eighth Circuit treats spoliation sanctions as procedural and evidentiary, governed by federal law even in a diversity case, Sherman v. Rinchem Co., 687 F.3d 996 (8th Cir. 2012), and its federal standard—intentional destruction indicating a desire to suppress the truth—is, like Missouri’s, intent-focused. But the federal ESI rule offers something Missouri’s common law does not: a negligence-level curative remedy under Rule 37(e)(1) when relevant electronic information is lost without intent. The practical upshot is that forum can matter here as elsewhere in Missouri products practice—the intent threshold for the most serious consequences is similar in both systems, but the federal ESI regime gives a litigant a remedy for negligent electronic loss that the Missouri spoliation doctrine withholds. Where electronic data (event-data-recorder downloads, design and testing files, adverse-event databases) is central, that difference should inform the removal-and-remand calculus.

VIII. The Economics of the Investigation

None of this is free, and the cost structure of the products investigation drives case selection more than any single doctrine. The expenditures are front-loaded: the plaintiff must often acquire the physical unit—by buy-back, subpoena, or negotiation—before it is scrapped or returned, and then store it intact, sometimes under special conditions, for the years the case will run. Multiple experts must be retained, and because the Daubert standard effectively requires reproducible, documented methodology, the plaintiff must fund reliable testing up front or lose the expert at the gate. Destructive testing multiplies the cost, because it typically demands exemplar units, a documented protocol, and a jointly observed or neutral procedure. Multi-party joint inspections—every defendant, every expert, a videographer, counsel to run the protocol—are efficient for the court but expensive per sitting and difficult to schedule across manufacturers, component suppliers, and insurers. And nearly all of this is spent before liability is established, typically on a contingent-fee firm’s capital.

The result is that Missouri products firms screen hard, and the doctrine and the economics point the same way. A viable case generally needs catastrophic damages sufficient to justify a six-figure investment in proof, a preserved or preservable artifact, and an identifiable, solvent manufacturer. A case with a lost or altered product and no adverse-inference hook—because the loss was merely negligent, or the destroyer was a third party against whom Missouri recognizes no remedy—is often economically unviable regardless of how strong the underlying defect theory might have been. That convergence is the thesis of the entire investigation phase: in Missouri, the law rewards the lawyer who treats the first weeks after the injury as the most important weeks of the case, secures the product, papers the duty to preserve, and funds the methodical, documented expert work that a defect verdict ultimately requires.

Related in the Products Liability Series

• Missouri Product Liability Law: The Complete Guide
• Design Defect Claims Under Missouri Law — the undefined “unreasonably dangerous” standard and how design cases are submitted.
• Manufacturing Defect Claims Under Missouri Law — proving departure from design by circumstantial inference and expert proof.
• Failure-to-Warn Claims Under Missouri Law — the two causation prongs and the read-and-heed presumption.
• Safer Alternative Design Requirements — why Missouri treats alternative design as evidence, not an element.
• Product Recall Evidence in Civil Litigation — the Pollard framework and the limits on recall admissibility.
• The Learned Intermediary Doctrine in Missouri Products Cases — the physician as the object of the duty to warn, and the preemption overlay.