## Facts

- Neville Construction Company operated a vehicle repair shop and purchased Cook Paint & Varnish Company’s foam insulation product, “Coro-foam 340,” for installation in the shop’s walls and ceiling.
- Cook provided/promoted the product with a brochure describing Coro-foam as “flame retardant.”
- After installation, a fire destroyed the building; the specific brochure Neville received was destroyed in the fire.
- Neville sued Cook in federal district court for negligence and breach of warranty, claiming the “flame retardant” representation was false or misleading and the product contributed to the fire loss.
- At trial, Neville offered testimony from Dennis Neville describing the brochure’s contents as secondary evidence of what the destroyed brochure said.
- Cook objected under the Federal Rules of Evidence best evidence doctrine, arguing Neville should have produced an available “similar brochure” rather than rely on oral testimony.
- The jury returned a verdict for Neville and awarded $80,000; judgment was entered on the verdict.
- Cook appealed, challenging the admission of the testimony about the brochure and contending it affected the verdict.

## Issues

1. Whether the district court violated the Federal Rules of Evidence governing proof of the contents of a writing by allowing testimony about the contents of a brochure destroyed in the fire when another “similar brochure” was allegedly available.
2. Whether admission of that testimony, even if erroneous, required reversal because it substantially influenced the jury’s verdict.

## Decision

- The Eighth Circuit affirmed the judgment for Neville.
- The court held the district court did not commit reversible error by admitting testimony describing the contents of the destroyed brochure.
- The unavailability of the specific brochure due to destruction supported use of secondary evidence absent bad faith.
- The existence of an allegedly “similar” brochure did not bar testimony where the record did not establish the other brochure was identical to the destroyed one.
- Any arguable error was not prejudicial because other evidence also supported that Cook represented Coro-foam as “flame retardant,” making the challenged testimony largely cumulative.

## Legal Principles

- When a party seeks to prove the contents of a writing, the original is generally required, but secondary evidence may be admitted if the original is lost or destroyed without bad faith.
- The availability of other writings that are merely similar does not necessarily trigger exclusion of secondary evidence unless they are shown to be the same writing or identical in relevant content.
- On appeal, evidentiary error warrants reversal only when it likely had a substantial influence on the verdict; cumulative proof and other supporting evidence weigh against a finding of prejudice.

## Conclusion

The Eighth Circuit upheld a jury verdict for negligence and breach of warranty after a fire loss, ruling that testimony about a destroyed product brochure’s “flame retardant” representation was permissible secondary evidence under the best evidence doctrine and, in any event, did not justify reversal because it did not substantially affect the outcome.


Neville Constr. Co. v. Cook Paint & Varnish Co., 671 F.2d 1107 (8th Cir. 1982)