A federal judge imposed sanctions on the city of Pueblo last week after it disposed of a key piece of evidence shortly after the plaintiffs filed suit seeking damages for the destruction of their home.

On June 25, 2022, a city bus crashed into David V. and Nancy M. Salama’s house. One year later, they sued Pueblo for negligence. Exactly three months after the Salamas filed their complaint, the city sold the bus for scrap without notifying the plaintiffs.

After the Salamas’ attorneys learned the bus was gone, they sought a “stern sanction” to punish Pueblo for destroying the evidence. In a Feb. 5 order, U.S. District Court Judge Charlotte N. Sweeney agreed that corrective action was necessary, considering the absence of the bus complicated the analysis for how the crash unfolded.

Sweeney further criticized the city for failing to acknowledge it did anything wrong by compromising the Salamas’ ability to investigate Pueblo’s narrative of the crash by examining the bus.

“That Defendant intentionally destroyed the only evidence available to Plaintiff to refute that theory severely limits Plaintiff’s ability to counter Defendant’s position. It is not Plaintiffs’ fault they are in this position or that the evidence is unavailable — that was due to Defendant’s actions alone,” she wrote.

Sweeney has set the Salamas’ case for a jury trial on the city’s alleged negligence. The dispute revolves around the nature of the impact between the bus and another car — which caused the bus to veer off course — and whether the bus driver struck her head on the window and lost consciousness.

Last July, the Salamas moved for sanctions based on the destruction of evidence.

“If the Bus were available for a live inspection by the parties’ experts, to closely examine the impact marks, paint transfers, and the front left tire, it is very possible, if not likely, that the parties would agree on the impact location of the Bus,” the plaintiffs’ attorneys wrote. “At a minimum, there would be additional and better evidence of this critical fact.”

In response, the city attempted to shift blame to the Salamas for never specifically asking for Pueblo to preserve the bus, and for waiting too long to raise the issue.

“Due to its size, the Bus took up valuable space in the Transit garage. No request had been made to preserve the Bus and so (transit director Benjamin) Valdez determined to sell it for scrap. He did not make this decision to hide or destroy evidence, but to free up space in the garage,” wrote attorney Ann B. Smith.

In a Dec. 11 order, U.S. Magistrate Judge Maritza Dominguez Braswell recommended that Sweeney impose consequences on the city for its actions. She noted civil litigants have a duty to preserve evidence when they know, or should know, that litigation is imminent.

“The Bus was sold for scrap after litigation had already commenced,” wrote Braswell. “Defendant was on notice, Defendant had custody and control of the Bus, and Defendant violated its duty to preserve a key piece of evidence in this litigation.”

She acknowledged both sides’ expert witnesses were “equally confined” by the unavailability of the bus, and that the Salamas’ expert offered a “comprehensive reconstruction report” based on other evidence. Still, Braswell deemed the city “meaningfully culpable” for destroying evidence it should have preserved.

Braswell recommended that Pueblo investigate how it failed to retain the bus and what it would do going forward to avoid similar violations. The city would then submit its findings to the court. Braswell also recommended that the city be barred from arguing at trial about the bus driver’s alleged loss of consciousness.

Finally, she believed Pueblo should pay half of the Salamas’ costs associated with their sanctions motion.

Both sides objected to portions of the recommendation. The Salamas asked that Pueblo pay their costs fully, and that jurors be instructed that they can assume the missing evidence would have been unfavorable to Pueblo. The city, meanwhile, responded that the limitation on loss-of-consciousness testimony meant jurors would receive “an incomplete story” of the crash.

In her order, Sweeney believed Pueblo’s conduct potentially merited “additional sanctions beyond those recommended” due to the city’s disregard for its legal obligations. She largely upheld Braswell’s recommendation, with the clarification that there can be no evidence, testimony or argument at trial about the bus driver’s alleged loss of consciousness.

Sweeney agreed that Pueblo must investigate its failure to preserve the bus as evidence, and provide her with a report about “the root cause of the failure.” Specifically, Sweeney indicated the city should describe its typical practices for disposing of damaged vehicles, whether any attorney told the transit director about the need to preserve the bus and when Pueblo’s attorneys learned of the destruction.

Sweeney indicated she could potentially modify the sanctions after receiving Pueblo’s autopsy on the bus disposal.

“Of course, either party may reference the destruction of the Bus, including the timing of that destruction, at trial,” she added. “This is not a fact from which the jury will be shielded.”

The case is Salama et al. v. City of Pueblo.