Court of Appeals of Missouri, Southern District, Second Division
PHILIP H. BERGER, Appellant,
COPELAND CORPORATION, LLC, Respondent.
FROM THE CIRCUIT COURT OF LACLEDE COUNTY HONORABLE RALPH H.
E. SCOTT, J.
damages at $5 million actual and $23 million punitive, jurors
found for Philip Berger against his employer Copeland
Corporation on workplace liability claims for exposure to
contaminated metalworking fluids. Upon Copeland's motion, the trial
court ordered a new trial "because this Court erred in
submitting Instructions 6 and 10, " respectively a
negligence verdict director and a non-MAI inference
appeals the new trial order, raising four points. We deny two
without extended discussion and take up Point III, which challenges
the grant of a new trial for error in giving the following
non-MAI inference instruction on spoliation:
If you should find that a party willfully destroyed evidence
in order to prevent its being presented in this trial, you
may consider such destruction in determining what inferences
to draw from the evidence or facts in this case. You may, but
are not required to, assume that the contents of the files
destroyed would have been adverse, or detrimental to that
Point III, Berger must show Instruction 10 was not erroneous
or it created no substantial risk of prejudice.
MFA Oil Co. v. Robertson-Williams Transport, Inc.,
18 S.W.3d 437, 439 (Mo.App. 2000).
was Error to Submit Instruction 10
Hartman v. Hartman, 284 S.W. 488 (Mo. banc 1926), if
not earlier, Missouri has prohibited adverse-inference jury
instructions. Counsel can argue the inference to the jury,
but no jury instruction should be given. Id. at 489.
most recent case involved a spoliation claim. See Pisoni
v. Steak 'N Shake Operations, Inc., 468
S.W.3d 922, 925-28 (Mo.App. 2015), which directly supports
the trial court's decision here and from which we quote:
Appellant does not identify any Missouri case law
demonstrating that, upon a finding of spoliation, a party is
entitled to relief in the form of an adverse-inference jury
instruction. As noted by the Missouri Supreme Court Committee
on Jury Instructions ("the Committee"), many things
cannot be stated in instructions, including inferences. Mo.
Approved Jury Instr. (Civil), Why and How to Instruct a Jury
(7th ed.), at LXXV. Specifically, the Committee provides the
Every lawyer knows that ... an adverse presumption arises
against the spoiler of evidence, ad infinitum. Nevertheless,
none of those presumptions or inferences or abstract
statements of law has any place in a jury instruction.
Id. at LXXV-LXXVI. The prohibition against such an
instruction is based upon the principle that the trial court
should not comment on the evidence. See Hartman v.
Hartman, 314 Mo. 305, 284 S.W. 488, 489 (1926)
("Such an instruction would be a comment on the
evidence; it is an inference of fact, not of law").
Id. at 927-28. The Eastern District thus held,
spoliation or not, that "Appellant was not entitled to
any jury instruction addressing that issue."
Id. at 928.
efforts to discredit Pisoni and distinguish
Hartman led us to examine case law. After
Hartman came Crapson v. United Chatauqua
Co., 37 S.W.2d 966, 967-68 (Mo.App 1931), which found
"no room for doubt" from Hartman and other
cases that an adverse-inference instruction would have been
improper. Next citing Hartman to similar effect was
Smith v. Kansas City Pub. Serv. Co., 56 S.W.2d 838,
842 (Mo.App. 1933). A decade later, cases moved to the
criminal side until Pisoni last year. See State
v. Damon, 169 S.W.2d 382, 384 (Mo. 1943); State v.
Parker, 543 S.W.2d 236, 245 (Mo.App. 1976); State v.
Brooks, 567 S.W.2d 348, 351 (Mo.App. 1978); State v.
Cameron, 604 S.W.2d 653, 661 (Mo.App. 1980); State
v. Dees, 631 S.W.2d 912, 916 (Mo.App. 1982); State
v. Eib, 716 S.W.2d 304, 309-10 (Mo.App. 1986).
in civil cases preceding Pisoni may be attributable
in part to MAI's arrival in the 1960's. With case law
already barring inference instructions, it was natural that
MAI's austere philosophy of jury instruction would