The opinion of the court was delivered by: Scullin, Senior Judge
MEMORANDUM-DECISION AND ORDER
On August 22, 2003, Plaintiff purchased a Huffy bicycle for her child, who was injured riding the bicycle that day. On August 23, 2003, Plaintiff's family returned the bicycle to Defendant/Third-Party Plaintiff Wal-Mart Stores East, LP, ("Wal-Mart") and reported the accident, which caused Wal-Mart to open a claim, put an evidence tag on the bicycle, and retain custody of the bicycle. Some time in May, June or July of 2005, a Wal-Mart bicycle assembler discarded the bicycle.
On June 28, 2005, Plaintiff filed this action against Wal-Mart asserting claims of negligence, strict products liability and breach of warranty based on the alleged careless assembly of the bicycle, failure to sufficiently test and inspect the bicycle, and selling the bicycle with the pedal loose or constructed with unsuitable material. On March 21, 2006, Wal-Mart filed its third-party action against Third-Party Defendant Shen Zhen Bo An Bike Co., Ltd.'s ("Boan"), the designer and manufacturer of the bicycle's crank and pedal, demanding judgment for contribution and/or indemnification and specific performance of a contract between Huffy and Boan to which Wal-Mart alleges it is a third-party beneficiary. On June 25, 2007, both Plaintiff and Boan filed motions for spoliation sanctions because Wal-Mart discarded the bicycle before experts for Plaintiff or Boan could inspect it.
In a Report and Recommendation dated October 18, 2007, Magistrate Judge Lowe found that, at the time Wal-Mart discarded the bicycle, Wal-Mart did not owe a duty to preserve the bicycle to Plaintiff, but did owe such a duty to Boan and recommended that this Court deny Plaintiff's motion for spoliation sanctions but grant Boan's motion for spoliation sanctions. See Dkt. No. 42. Magistrate Judge Lowe recommended that Wal-Mart pay all expert fees that Boan had incurred to date for Karl E. J. Barton. See id. at 14-15. Wal-Mart objected to the recommendation of sanctions, see Dkt. No. 43; and Boan objected to the nature of the recommended sanction, see Dkt. No. 44.
Where the parties do not object to a report and recommendation, the court reviews the report and recommendation for clear error. See Farid v. Bouey, 554 F. Supp. 2d 301, 306 (N.D.N.Y. 2008) (citation omitted). Where a party makes specific objections addressed to portions of the report and recommendation, the court conducts a de novo review of the issues raised by the objections. See id. at 307 (citation omitted).*fn1
With regard to Magistrate Judge Lowe's recommendation to grant Boan's motion for spoliation sanctions against Wal-Mart, Wal-Mart objected to the following findings: (1) that Wal-Mart had a duty to Boan to preserve the bicycle even after its duty to Plaintiff had expired; (2) that Wal-Mart was negligent in failing to place the bicycle in the claims cage; and (3) that the destruction of the bicycle did not cause prejudice to Boan. With respect to all of Wal-Mart's objections, the Court concludes that Magistrate Judge Lowe correctly applied the appropriate law and that Plaintiff's objections on these issues are without merit for the reasons stated in the Report and Recommendation.*fn2
With regard to Magistrate Judge Lowe's recommendation on the nature of the sanction, Boan argues that the sanction should be dismissal of Wal-Mart's third-party action because, in the absence of the bicycle, no party can prove a defect or the absence of a defect with any scientific certainty. The Court concludes that Magistrate Judge Lowe correctly applied the appropriate law and determined an appropriate sanction. Therefore, the Court finds that Plaintiff's objection on this issue is without merit.
Accordingly, after carefully considering Magistrate Judge Lowe's Report and Recommendation, the parties' objections thereto, as well as the applicable law, and for the reasons stated herein and in Magistrate Judge Lowe's Report and Recommendation, the Court hereby
ORDERS that Magistrate Judge Lowe's October 18, 2007 Report and Recommendation is ADOPTED in its entirety; and the Court further
ORDERS that Plaintiff's motion for spoliation sanctions is DENIED; and the Court further;
ORDERS that Third-Party Defendant Shen Zhen Bo An Bike Co., Ltd.'s motion for spoliation sanctions is GRANTED and Defendant/Third-Party Plaintiff Wal-Mart Stores East, LP, shall pay all expert fees incurred by Third-Party Defendant Shen Zhen Bo An Bike Co., Ltd. for the services to date of Karl E. J. Barton; and the Court further
ORDERS this matter is remanded to Magistrate Judge Lowe for all further pretrial proceedings, including the determination of the amount of expert fees that Third-Party Defendant Shen Zhen Bo An Bike Co., Ltd. has incurred for the services of Karl E. J. Barton and for which ...