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Berger v. Copeland Corporation, LLC

Court of Appeals of Missouri, Southern District, Second Division

October 5, 2016

PHILIP H. BERGER, Appellant,
v.
COPELAND CORPORATION, LLC, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF LACLEDE COUNTY HONORABLE RALPH H. JAYNES, JUDGE

          DANIEL E. SCOTT, J.

         Assessing 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.[1] 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 instruction.

         Berger appeals the new trial order, raising four points. We deny two without extended discussion[2] 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:

         INSTRUCTION NO. 10

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 party.

         To win 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).

         It was Error to Submit Instruction 10

         Since 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.

         The 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 following:
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.

         Berger's 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).

         The gap 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 ...


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