As a sanction for spoliation, a judge has tossed out a lawsuit against the city of Conyers over a wreck that killed a mother-to-be and her unborn baby girl.

The lawsuit alleges the cause of the wreck was the city's failure to clear a storm drain, causing water to pool in the road. The reason for the dismissal: The towing company destroyed the vehicle before either side could examine it—even though the plaintiffs attorney had asked that it be preserved.

“While the court considered less severe sanctions than the sanction of dismissal, this is a case in which the severe sanction of dismissal is warranted,” Rockdale County State Court Judge Nancy Bills said in a Dec. 14 order. The judge said the city had been “prejudiced as a result of the destruction of this evidence and the destruction cannot be cured.”

Brandy Wilkins was killed in 2015 when she rounded a curve and hit water, losing control of her husband's 1994 Chevrolet pickup truck, crashing head-on into another vehicle, then leaving the road. Without the pickup, the judge said, “there is no way for the defendant to determine if a mechanical failure or improper equipment was a potential cause of this accident.”

Bills granted the city's motion to strike. A note at the bottom of her order said it was “prepared and submitted by” counsel for the defendant, Mary Katz of Chambless, Higdon, Richardson, Katz & Griggs in Macon.

Katz worked on the case along with David Nelson and Chris Miranda of Chambless, Higdon.
“We cannot comment on pending litigation,” Nelson said Monday.

Indeed, the litigation is still pending. Plaintiffs attorneys Ryan Johnson, a solo, and R. Scott Campbell of Shiver Hamilton, said Monday they will appeal.

“I am confident the ruling will be overturned, but I'm frustrated that it's going to take an appeal and a delay of a year,” Campbell said.

“The order jumps over the fact that we didn't have possession of the vehicle,” Campbell added. “We didn't spoliate. We specifically requested that it be preserved.”

But instead of preserving the truck as the attorney requested, the towing company destroyed it after notifying the owner by certified letter that he never saw because it went to his mother's address.

Both plaintiffs attorneys said they believe the order is inconsistent with Georgia precedent. “The case law tends to deal with intentional, deliberate acts that are much more egregious and courts are still reluctant to do this,” Johnson said. “This is over a husband grieving his wife, not checking mail coming to his mom's house.”