Timothy HILL, Appellant, v. SSM HEALTH CARE ST. LOUIS, Respondent.

No. ED 105779

Missouri Court of Appeals, Eastern District, Division Two.

FILED: May 29, 2018 Motion for Rehearing and/or Transfer to Supreme Court Denied July 5, 2018 Sustained and Cause Ordered Transferred September 25, 2018 Retransferred to Missouri Court of Appeals December 18, 2018 For Opinion after Retransfer, see 2018 WL 2407299

FOR APPELLANT: Douglas P. Dowd, William T. Dowd, Alex R. Lumaghi, 211 North Broadway, Suite 4050, St. Louis, Missouri 63102.

For Respondent: Timothy J. Gearin, David G. Ott, Jeffery T. McPherson, Nicolas Cejas, 7700 Forsyth Blvd., Suite 1800, St. Louis, MO 63105.

ROY L. RICHTER, Judge *759Timothy Hill ("Appellant") appeals from the trial court's judgment, following a jury trial, finding in favor of SSM Health Care St. Louis ("SSM") in Appellant's wrongful death claim for the death of his father. We reverse and remand the case for a new trial.

**I. Background**

On September 3, 2009, patient Irvin Hill ("Mr. Hill") fell and struck his head while entering SSM's Procedure Center at St. Clare Hospital. Mr. Hill went into a coma and died from his injuries on October 27, 2009. On June 30, 2010, his surviving son, Appellant, filed a petition for wrongful death against SSM, alleging that the fall was caused by an uneven walking surface leading into the St. Clare Hospital Procedure Center. Appellant claims that SSM improperly destroyed a surveillance video of the incident. The following evidence was presented at trial.

On September 3, 2009, after Mr. Hill's fall, security guard Robert Rieder ("Rieder") took photographs of the scene and prepared an incident report. Rieder's report described Mr. Hill's fall based on his viewing of the surveillance video. Rieder did not save the video because he said he did not know how, and he believed St. Clare's policy did not require him to do so. Appellant asserts that SSM's Corporate Services and Procedures apply to the fall, which required him to save the video. SSM Corporate Claims Specialist Anne Mardis stated that document retention policy regarding "slip and falls" is formulated at the individual facility level. St. Clare's policy required only a guard to prepare an accidental injury report and ensure photographs of the accident site were exposed and attached to the report. The Monday following the fall, Rieder's supervisor, Mike Fitzhenry, reviewed Rieder's handwritten notes and typed the final report. Rieder disposed of the notes as he usually did following the preparation of a final report.

On September 4, 2009, the day after the fall, Mr. Hill's wife, Mrs. Pat Hill ("Mrs. Hill"), asked Rieder about the surveillance camera outside of the Procedure Center. Mrs. Hill attempted to view the video with security team leader Rich Cunningham ("Cunningham"), but they were unable to find video of the fall. Cunningham did not recall meeting with Mrs. Hill.

Appellant asserts that the video was destroyed, while SSM asserts that the video was overwritten. SSM provided varying time lengths for how long video was stored before being recorded over on the surveillance system. On September 12, 2009, an SSM risk manager told the Hill family that the system was on a seven-day loop, so the video from September 3, 2009, had been overwritten. Rieder said the video recorded on a three-day loop. Four months after the fall, SSM's risk manager stated that, in September 2009, SSM did not have the ability to save video on the surveillance system. On the other hand, the director of security, Mike Fitzhenry, said video could be preserved by separating it and saving it to the "C" drive on the computer. Later, in 2013, SSM stated that the surveillance system was designed to store up to seven days of video, but the video resolution settings and the inadvertent storage of video footage from operating room cameras were causing the system to overwrite *760footage as early as 72 hours, rather than seven days.

SSM's efforts to recover the video were limited to having an IT employee with no experience on the surveillance system look for the video sometime between September 7, 2009, and September 14, 2009. SSM did not contact the system vendor for assistance or a forensic computer engineer to recover the video.

On October 23, 2009, SSM installed additional hard drives on the computer system to double the storage capacity of its file server, which wiped anything on the previous array of drives. This removed all preexisting data, including activity logs that showed anything happening on a server, every user logging in, and any video changes. The activity logs would have shown whether the video was overwritten rather than deleted though human intervention. Appellant's expert Pete Puleo stated that St. Clare did subsequent work on the computer system drives in April and August of 2010, and during both changes, SSM kept the activity log files. Thus, while they wiped the system in October 2009 without preserving backup copies of the logs, on at least two other occasions SSM made appropriate backup copies of the logs before wiping the system.

As a result of the varying explanations of what happened to the video, Appellant filed a motion for application of the spoliation doctrine seeking an adverse evidentiary inference against SSM, alleging that SSM spoliated the surveillance videotape. Appellant wanted to tell the jury that it may draw an adverse inference to the effect that had the video recording been maintained, it would have shown that Mr. Hill fell as a result of the uneven walking surface at the entrance to the Procedure Center. Further, Appellant requested that the court prevent the admission of Rieder's testimony and report regarding the video. The trial court denied the motion for application of the spoliation doctrine and did not grant the adverse inference, but permitted Appellant to introduce evidence of alleged spoliation and argue about spoliation during opening and closing argument. The trial court ordered that Reider's report and testimony describing what the video showed was not admissible at trial.

After a six-day trial, the trial court submitted the case to the jury on Appellant's proposed jury instruction for wrongful death. On March 27, 2017, the jury returned its verdict in favor of SSM and the trial court entered judgment accordingly. Appellant filed a Rule 78.01 motion for new trial and a Rule 78.02 motion for new trial. The trial court denied both motions on July 12, 2017. Appellant filed a notice of appeal on July 21, 2017, and this appeal follows.

**II. Discussion**

Appellant raises five points on appeal. Points three, four, and five are affirmed. Points one and two are discussed herein.

In point one, Appellant alleges the trial court erred in denying his motion for application of the spoliation doctrine in that the spoliating party should have been held to admit that the video would have shown Mr. Hill's fall was caused by the dangerous condition at issue. In point two, Appellant claims the trial court erred in overruling Appellant's objection to SSM's intentional and knowing misstatement of the law during closing argument regarding spoliation and by arguing to the jury that SSM was barred from discussing the content of the video and that SSM regretted not having the video in violation of the pretrial order.

*A. Spoliation Doctrine (Point I)*

In point one, Appellant argues the trial court erred in denying his motion for application *761of the spoliation doctrine on the issue of causation and the legal effect of SSM's intentional spoliation of the video of Mr. Hill's fall. Appellant asserts that the spoliating party is held to admit the specific facts the spoliated evidence would have been unfavorable, in that SSM should have been held to admit that the video would have shown Mr. Hill's fall was caused by the dangerous condition at issue.

Appellant mischaracterizes the effect and extent of the adverse inference. In Missouri, the victim of spoliation is entitled to an adverse inference, which holds the spoliator to admit that the missing evidence would have been unfavorable to its position. *Marmaduke v. CBL & Assocs. Mgmt., Inc.*, 521 S.W.3d 257, 270 (Mo. App. E.D. 2017). The adverse inference does not prove the opposing party's case and the spoliator is left to determine whether any remaining evidence exists, outside of the unavailable evidence it must admit is unfavorable, to support his or her claim or defense. *Id.* In the instant case, the adverse inference would hold SSM to admit that the content of the video was unfavorable to its position, not that the video would show the fall was caused by the dangerous condition at issue as Appellant contends.

*1. Standard of Review*

We review the trial court's rulings on admission of evidence for an abuse of discretion. *Id.* at 266. An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances before the court at the time and is so unreasonable and arbitrary that it shocks one's sense of justice and indicates a lack of careful consideration. *Id.* at 267. If reasonable persons can differ as to the propriety of the court's action, then it cannot be said that the court abused its discretion. *Lozano v. BNSF Ry. Co.*, 421 S.W.3d 448, 451 (Mo. banc 2014). Moreover, by both statute and rule, we are not to reverse a judgment unless the error committed by the court materially affected the merits of the action. *Id.* at 451-52.

*2. Analysis*

Appellant alleges the trial court erred in denying the motion for application of the spoliation doctrine. We agree.

Spoliation is the intentional act of destruction or significant alteration of evidence. *Pisoni v. Steak 'N Shake Operations, Inc.*, 468 S.W.3d 922, 925 (Mo. App. E.D. 2015). The spoliator must destroy or alter the evidence under circumstances indicating fraud, deceit, or bad faith. *Id.* An inference of fraud and a desire to suppress the truth may be established if the alleged spoliator had a duty or should have recognized a duty to preserve the evidence. *Marmaduke*, 521 S.W.3d at 269. Under certain circumstances, the spoliator's failure to adequately explain the evidence's destruction may give rise to an adverse inference. *Id.* A finding of spoliation provides an evidentiary remedy to punish the spoliator. *Pisoni*, 468 S.W.3d at 926. "Not concerned with whether the opposing party suffers prejudice as a result of the destroyed evidence, the doctrine works only to punish the spoliator." *Schneider v. G. Guilliams, Inc.*, 976 S.W.2d 522, 526 (Mo. App. E.D. 1998). "Specifically, the spoliation doctrine and the resulting adverse inference punishes the spoliators by holding them to admit that the destroyed evidence would have been unfavorable to their position." *Id.* The adverse inference, however, does not prove the opposing party's case. *Id.* Missouri allows the trial court to address the issue by impacting the evidence the jury may hear regarding the subject matter of the spoliated evidence. *Marmaduke*, 521 S.W.3d at 270. Courts have been cautioned to tailor the remedy *762to the problem and to "take pains neither to use an elephant gun to slay a mouse nor to wield a cardboard sword if a dragon looms." *Id.* (quoting *Anderson v. Beatrice Foods Co.,*900 F.2d 388, 395 (1st Cir. 1990) ).

In *Garrett v. Terminal R. Ass'n of St. Louis*, a railroad switchman brought a Federal Employers' Liability Act claim against a railroad for injuries he received in an allegedly defective shelter cab on a train. 259 S.W.2d 807, 811 (Mo. 1953). The case was submitted to the jury on the theory that flat wheels in connection with loose and missing center bolts were the direct and proximate cause of the switchman's injuries. *Id.* at 812. Finding error in the trial court's admission into evidence of the switchman/respondent's exhibit 1, which was a photostatic reproduction of a purported "bad order card" that the respondent said he removed from the car in which he was riding on the day of his alleged injury, the Missouri Supreme Court reversed and remanded the case. *Id.* at 809. The Court noted that the admissions of the switchman's attorney and the switchman's testimony were inconsistent and unsatisfactory as to what became of the original "bad order card." *Id.* at 811. The Court found that the only conclusion that could be drawn from the admissions and testimony was that the respondent intentionally destroyed the bad order card, since there was "not the slightest evidence that he made any effort to produce it." *Id.* The Court noted that the testimony was unsatisfactory as to what happened to the original card when the respondent stated, "I had no more use for it after I had the photostat, that is all I wanted." *Id.* at 812. The Missouri Supreme Court found that the trial court abused its discretion because the only reasonable conclusion was that the respondent intentionally destroyed the original exhibit. *Id.* at 811. The Court found that this gave rise to an inference unfavorable to the spoliator. *Id.* at 812. Thus, the respondent was required to admit to the "truth of [the appellant's] contention that the words, '& Flat Wheels,' were not on the original bad order card," even though they were on the photostatic copy thereof which was admitted into evidence. *Id.*

Here, SSM also gave inconsistent explanations and failed to adequately explain the video's destruction, which gives rise to an adverse inference that what was on the surveillance video was unfavorable to them. A summary of the evidence includes: shifting versions of what happened to the video, varying time length explanation for overwriting video, Reider stating that he did not feel the video should be in the record, Reider failing to disclose his handwritten notes about the incident, false statements by an SSM risk manager that SSM did not have the capacity to save video in September 2009, denial of the meeting with Mrs. Hill to view the video the day after the fall, insufficient explanation of why the video was missing the day after the fall, and SSM's minimal effort to try to find the video on the system. Reider's statement in reference to the video that he "didn't feel that it should be in the record" and he thought that writing down what he saw was sufficient is similar to the statement in *Garrett*, which the Missouri Supreme Court found to be an unsatisfactory explanation of what happened to evidence in that case. In addition to Reider's statements, the other overwhelming inconsistencies surrounding the destruction of the video surveillance give rise to an inference of fraud, deceit, or bad faith.

The court's remedy to allow the parties to argue the adverse inference at trial due to SSM's spoliation of the video of Mr. Hills fall was insufficient to address the overwhelming evidence of spoliation. Allowing Appellant to argue about spoliation *763during opening and closing argument was an insufficient remedy because statements made during opening and closing argument are not evidence. *State v. McFadden*, 369 S.W.3d 727, 742 (Mo. banc 2012) ("The 'unsworn remarks of counsel in opening statements, during the course of trial or in arguments are not evidence of the facts asserted.' ") (quoting *State v. Forrest*, 183 S.W.3d 218, 226 (Mo. banc 2006) ). Because courts are to tailor the remedy to the problem, here, the proper remedy for such varying accounts of what happened to the only eye witness account of the fall and inadequate explanations is an adverse inference.

The volume of evidence shows that it is against logic of the circumstances to conclude there was no spoliation in this case. Appellant is entitled to an adverse inference that would hold SSM to admit that the content of the video was unfavorable to its position.1 Point one is granted.

*B. Misstatement of the Law during Closing Argument (Point II)*

In point two, Appellant alleges that the trial court erred in overruling his objection to SSM's intentional and knowing misstatement of the law regarding spoliation during closing argument because defense counsel made prejudicial misstatements of law to the jury. Appellant alleges defense counsel incorrectly told the jury that because there was nothing in the jury instructions regarding spoliation, the law did not support Appellant's adverse inference.

Appellant also alleges that the prejudice was compounded when defense counsel argued in closing that SSM was barred from discussing the contents of the video, and that SSM regretted not having the video, in violation of the trial court's prior order regarding permissible statements concerning the destroyed video. Appellant failed to properly object to this portion of the closing argument, so this argument was not preserved for appellate review. "Failure to properly object to closing argument at the time it is made to a jury results in a waiver of any right to complain of the argument on appeal, even if the point is preserved in an after trial motion." *Howard v. City of Kansas City*, 332 S.W.3d 772, 791 (Mo. banc 2011). Here, while Appellant included this argument in his motion for new trial, Appellant only objected to the portion of the closing argument about the misstatement of law regarding the jury instruction on spoliation, so mention of the video was not preserved.

*1. Standard of Review*

A trial court's rulings on objections made to remarks by counsel during closing arguments are reviewed for abuse of discretion. *Peterson v. Progressive Contractors, Inc.*, 399 S.W.3d 850, 856 (Mo. App. W.D. 2013). "[T]he permissible field of argument is broad, and so long as counsel does not go beyond the evidence and the issues drawn by the instructions, or urge prejudicial matters, or a claim or defense which the evidence and issues drawn by the instructions do not justify, he is permitted wide latitude in his comments." *Id.* (quoting *Heshion Motors, Inc. v. W. Int'l Hotels*, 600 S.W.2d 526, 534 (Mo. App. W.D. 1980) ). However, "[m]isstatements *764of law are impermissible during closing argument and a trial court has the duty, not discretion, to restrain and purge such arguments." *Id.* at 856-57 (quoting *Bradley v. Waste Mgmt. of Mo., Inc.*, 810 S.W.2d 525, 528 (Mo. App. E.D. 1991) ). An argument does not require reversal unless it amounts to prejudicial error. *State v. Forrest*, 183 S.W.3d 218, 226 (Mo. banc 2006). The court should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury. *Id.* at 226-27.

*2. Analysis*

Appellant alleges the trial court erred in overruling his objection to SSM's intentional and knowing misstatement of the law during closing argument regarding spoliation when SSM told the jury there was nothing in the jury instructions regarding spoliation and the law did not support Appellant's adverse inference argument. We agree.

In the trial court's pretrial order, the court ordered: "The court will not give a spoliation instruction. The court will permit evidence of spoliation and [SSM's] explanation of the missing evidence. The parties will be permitted to argue the law as the court determines." In closing argument, SSM stated, "In the instructions, which are the law ... you will not find one word in here to say anything about spoliation, loss of evidence, and you should then render a verdict in favor of the Hills. Nothing about that."

Plaintiff objected, stating, "Well, Judge, I object to that. He knows we can't give an instruction on that. I think that's-I think that's improper." The trial court overruled Plaintiff's objection.

The remedy for spoliation is an adverse inference, which holds the spoliator to admit that the missing evidence would have been unfavorable to its position. *Marmaduke*, 521 S.W.3d at 270. An inference is a permissible deduction the trier of fact may make without an express instruction of the law by the court. *Id.* This is why a party is not entitled to an adverse inference jury instruction. *Id.* Here, SSM argued during closing that there was nothing in the jury instructions about spoliation, and the instructions are the law, so therefore, they should render a verdict in favor of SSM. This mischaracterized the law for the jury and could have led to confusion. Missouri law is settled that an adverse inference jury instruction is improper, and an adverse inference is the remedy. When SSM argued that Appellant's adverse inference argument was not supported because it was not in the instructions, it mischaracterized the law and misled the jury. The pretrial order stated that "the parties will be permitted to argue the law as the court determines," but SSM denied Appellant the opportunity to argue the law of an adverse inference when SSM told the jury there was nothing about spoliation or destruction of evidence in the jury instruction, so it was not the law.

SSM's closing argument prejudiced Appellant's position regarding the missing evidence and mischaracterized the law regarding the adverse inference and spoliation instruction. These misstatements are impermissible, and the court has a duty to exclude these statements that tend to confuse the jury. Point two is granted.

**III. Conclusion**

The trial court's judgment is reversed and the case is remanded for a new trial.

1

The ban on giving a "spoliation instruction" may need to be re-visited by the Missouri Supreme Court's civil committee on jury instructions. The practical difficulty of somehow inserting the required admission that the spoliated evidence would be unfavorable to the spoliating party poses complicated issues. Perhaps once a court has determined that spoliation has occurred, the giving of an instruction advising the jury that they are to consider that the missing evidence would be unfavorable to the "guilty" party would alleviate the practical problems encountered in attempting to place the concept before the jury.

Lisa P. Page, P.J., Concurs.

Philip M. Hess, J., Concurs.