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Hill v. SSM Health Care St. Louis

Court of Appeals of Missouri, Eastern District, Second Division

May 29, 2018

TIMOTHY HILL, Appellant,

          Appeal from the Circuit Court of St. Louis County Honorable Nancy Watkins McLaughlin

          ROY L. RICHTER, Judge

         Timothy 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 footage 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. ...

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